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CONSTITUTIONAL STUDIES, 

STATE AND FEDERAL. 



WOEES OF PKOP. SOHOULEE. 



A HISTORY OF THE UNITED STATES UNDER 
THE CONSTITUTION. 5 vols., 8vo. Cloth. 
$11.25. 

THOMAS JEFFERSON. 12mo. Cloth. $1.00. 

HISTORICAL BRIEFS, WITH BIOGRAPHY. 8vo. 
Cloth. $2.00. 

CONSTITUTIONAL STUDIES, STATE AND FED- 
ERAL. 8vo. Cloth. $1.50. 



DODD, MEAD AND COMPANY, 

Puhlishers. 



CONSTITUTIONAL STUDIES, 



STATE AND FEDERAL. 



BY 



- JAMES SCHOULEK, LL.D., 

PROFESSOR OP LAW, AND AUTHOR OP "HISTORY OP THE UNITED 
STATES UNDER THE CONSTITUTION." 






NEW YORK: 
DODD, MEAD AND COMPANY. 

1897. 

^1 



Copyright, 1897, 
By James Schouler. 



Untversitt Press : 
John Wilson and Son, Cambridge, U.S.A. 



PREFACE. 



This volume contains the substance of lectures 
delivered before the graduate students of Johns 
Hopkins University during the years 1893-1896. 
The author, pursuing his own investigation of the 
primary documents, has sought to trace the origin 
and progress of those political ideas which have be- 
come dominant and fundamental in American gov- 
ernment. His order of study embraces : (1) Early 
colonial charters and the constitutions of the old 
thirteen States ; (2) documents of Union, whose full 
fruition is the Constitution of the United States ; 
(3) State constitutions since the adoption of this full 
Federal system. Such a study brings many important 
facts into new relief which pertain to American de- 
mocracy and its progression,^ and should be found 
both interesting and suggestive. Even in the more 
trite and familiar analysis of our Federal Constitution, 
the author has sought to impart some freshness of 
treatment by employing historical illustration drawn 
from the national experience of a century. 

J. S. 

August 10, 1897. 

^ See, e.g., as to miethods of constitutional adoption, p. 211 e< seq.; 
oral voting and the ballot, p. 231 et seq. 



CONTENTS. 



PART I. 

EARLY CHARTERS AND CONSTITUTIONS. 

I. 

Page 

Introductory • • 1 

Modern American Institutions. — The Common or Consue- 
tudinary Law. — Legislative Enactment. — Fundamental 
Charter or State Constitution. — Federal Constitution and 
Pursuant Acts of Congress and Treaties. 

II. 

The Colonial Governments. 1607-1776 9 

Thirteen Colonies classified. — Early Fundamental Charters. 

— These Charters studied. — Structure of Colonial Govern- 
ment, — Allegiance, Civil Rights, and Inter- Colonial Rights. 

— Religious Toleration. — Trade and Business. — Land 
Tenure. 

III. 

Revolutionary Bills op Rights. 1776-1783 ... 29 

Bills or Declarations of Rights. — Virginia, Pennsylvania, 
and Maryland in 1776. — Other Bills of Rights and their 
Ideas. — Religious Features noticed. 

IV. 

Early State Constitutions. 1776-1789 45 

Montesquieu Structure of Government. — Conventions with 
Plenary Power. — Elective Franchise. — Legislature, Execu- 
tive and Judiciary. — Miscellaneous Provisions. 



viii OOJSTTUWTjS, 

PART II. 
THE FEDERAL UNION. 

I. 

Page 
Early Tendencies to Union. 1609-1764 70 

E Pluribus Unum. — New England Confederacy. — Colonial 
Boards of Commissioners. — Albany Convention of 1754 
and Franklin's Plan of Union. 

II. 

Independence and Revolution. 1765-1780 .... 79 

Stamp Act Congress of 1765. — Continental Congress (1774) 
and Resistance. — Declaration of Independence. — Conti- 
nuity of Union in these States. 

III. 

Articles of Confederation. 1781-1789 84 

Revolutionary Government (1776-1780). — Adoption of Arti- 
cles (1781). — Nature and Incomplete Scope of Confederacy. 
— Congress and its Authority. — Delegated Power from 
States. 

IV. 

The Federal Constitution; its Nature and Estab- 
lishment. 1787-1789 93 

Fatal Defects of Old Confederacy. — Convention of 1787 and 
New Plan of Union. — New Government operating upon 
the People. 

V. 

Federal Constitution Analyzed; Structure and 

Distribution of Powers; Legislature ... 99 

Nature of Federal Government as to States. — Rules of Inter- 
pretation. — Preamble and Purpose. — Congress and its 
Structure. — Course of Legislation. 



CONTENTS, ix 

VI. 

Page 
Federal Constitution Analyzed ; Fundamental 

Powers of Congress 115 

Fundamental Powers and Prohibitions, State and Federal. 

— Power to Tax. — To BorroAv Money. — To Regulate 
Commerce. — Naturalization and Bankruptcies. — Power 
to Coin Money, and Regulate, etc. — Post-Offices and Post- 
Roads. — Patents and Copyrights. — Federal Criminal 
Offences. — War and Peace Power. — Armies and Navies. 

— Calling forth the Militia. — Federal Capital and Sites 
reserved. 



VII. 

Federal Constitution Analyzed; Federal and 

State Prohibitions 148 

Express Prohibitions upon Congress and the United States. 
— Express Prohibitions upon States, together with the 
United States. — Unqualified Prohibitions upon States. — 
State Prohibitions unless Congress assents. — Implied 
Prohibitions. 



VIII. 

Federal Constitution Analyzed; The Executive 156 

Chief Federal Executive newly created. — President and 
Vice-President. — How Chosen. — Term and Qualifica- 
tions. — Powers and Duties, Domestic and Foreign. — 
Conclusion. 



IX. 

Federal Constitution Analyzed ; The Judiciary . 169 

Former Judicial Establishment Indistinct. — Independence 
of Present Judiciary, and Permanence of Supreme Court. 
— Tenure, Recompense, etc. — Functions exercised and 
Jurisdiction. — Questions of Constitutional Conflict. — 
Supreme Law of Land. — Jury Trial for Crime. — Treason 
and Attainder. — Federal Crimes defined. 



X CONTENTS. 

X. 

Page 
Federal Constitution Analyzed ; Interstate and 

Territorial Relations 178 

Full Faith aud Credit between States. — Privileges aud Im- 
muuities. — Mutual Extradition. — Annexations to Union. 
— Foreign Acquisitions. — Regulation of Domestic Terri- 
tory. — Guaranty of Republican Government. — Protec- 
tion against Invasion or Domestic Violence. 

XI. 

Federal Constitution Analyzed ; Adoption, Power 

to Amend, and Federal Supremacy . . . . 185 

No Direct Reference to People, — Modes of Future Amend- 
ment. — Confederation Debts Binding. — Supreme Law 
of Laud. — Federal Oath. — No Religious Test of Office. 

XII. 

Federal Constitution Analyzed; Subsequent 

Amendments 190 

Fifteen Amendments since 1 787. — Ten as a " Bill of Rights " 
Addition proposed in 1789. — Eleventh restraining Judi- 
cial Pow'er against States. — Twelfth relating to Presi- 
dential Elections. — Three Civil War Amendments. 



PART III. 
STATE CONSTITUTIONS SINCE 1789. 

I. 

Historical Sequence 203 

Influence of Federal Constitution upon States. — Tlie Present 
Union. — Era of Federalism (1789-1801), — Republican 
Era (1801-1815). — Era of Peaceful Development (1816- 
1835). —Era of Strife (1836-1861).— Civil War and Re- 
construction (1861-1877). — New Era (1877-1897). 



CONTENTS, xi 

n. 

Page 
Methods of Fundamental Adoption and Change . 211 

Popular Reference of Convention Work. — Later Constitu- 
tions, How Adopted. — Constitutional Amendments. — 
Modern Constitution enacted at the Polls. 

III. 

State Fundamental Maxims 220 

"Bills of Eights " since 1789. — Maxims of Political and 
Personal Liberty. — No Imprisonment for Debt. — Exemp- 
tions from Execution, etc. — Woman's Rights. — Educa- 
tion and Religion. 

IV. 

The Elective Franchise 231 

Federal Deference to States. — Voting Qualifications. — 
Ballot and viva voce Mode. — Registration, Residence. 

— Other Provisions. — Negro Suffrage Problem. — Plu- 
rality Poll and Minority Representation. — Race and Sex 
Restrictions, etc. — Increased Power of Choice. 

V. 

The Legislature 249 

Modern Legislature Bicameral. — Senate and House. — 
Distrustful Provisions. — Modern Organization and Modes 
of Business. — Fundamental Restraints upon Legislation. 

— Latest Reforms. — Public Supervision. 

VI. 

The Executive 267 

Increased Dignity of State Governor. — Dependence upon 
People rather than the Legislature. — Modes of Choice, 
Term, and Qualifications. — Council, Lieutenant-Gov- 
ernor. — Power to Pardon, Veto, and Appoint. — Chief 
Subordinates of State. — Failure of Early Expedients. — 
Popular Control Increasing. 



xii CONTENTS, 

VII. 

Page 
The Judiciaey 283 

State Judicial Establishments. — Modern Tenure for Years 
with Popular Choice. — Other Constitutional Provisions. 

— Court Officers. — Constitutional Interpretation by Judi- 
ciary. — Conservators of Organic Law. 

VIII. 

Miscellaneous ; Conclusion 296 

Impeachment and its Substitutes. — Modern Qualifications 
for Office, etc. — State Capitals, and their Location. — 
Commissions. — Education and Philanthropy. — Muni- 
cipal Government. — Growth of the Popular Referendum. 

— Anglo-Saxon Temperament prevails. — Federal and 
State Constitutions compared. — Strength of American 
Democracy. 



Constitution of the United States 309 

Index 827 



CONSTITUTIONAL STUDIES. 



PART I. 
EARLY CHAETERS AND CONSTITUTIONS. 

I. 

INTRODUCTORY. 

If we examine the Revised Statutes of any well- 
ordered commonwealth, — a work prepared and pub- 
lished under authority of the legislature as the full 
and systematized expression of written law at a given 
date, — we shall find printed there the State constitu- 
tion, followed or preceded by the great mass of gen- 
eral enactments condensed and arranged by titles and 
chapters. And the same may be said correspondingly 
of the Revised Statutes of our Federal Union. In 
such a huge bound volume, which exhibits only what 
still remains enforceable in the community as a code, 
we perceive that the constitution occupies but a few 
pages comparatively, while perhaps nineteen-twen- 
tieths of the whole bulk comprise public statutes, the 
periodical efflux of legislation. Here and there, per- 
haps, if the codifying work be scholarly, we shall find 
citations from the judicial reports, indicating that this 
vast array of mandatory text has received from time 
to time the comment and construction of the courts 
as to its fundamental force and meaning. 

Sovereign precepts are in these modern days pub- 
licly set forth; and from such an open book we 

1 



2 CONSTITUTIONAL STZ7DIES. 

gather in detail the institutions of a modern Ameri- 
can State, so far as the people's organic text, supple- 
mented and expanded by the variable but consistent 
enactments of popular representatives in the legisla- 
ture from time to time, may display them at a certain 
epoch. To the former, and more constant as well as 
more comprehensive class of written institutions in 
America, this volume will confine itself. 

Charters and constitutions, the framework and 
fundamental expression of American government, 
whether in a State or Federal sense, furnish, in fact, 
the primary ideas of our political system, the organic 
institutions to which legislation, and, indeed, the 
whole practical conduct of public affairs, must be 
purely subsidiary, like water conducted through some 
prearranged channel. Every statute, every act of the 
legislature, must conform to the basic mould of our 
local constitution, else the judiciary, when invoked, 
will check its operation. Not that American consti- 
tutions and legislative acts progress historically to- 
gether and change together, but that the constitution 
of any given date acquires supremacy, and each con- 
stitutional change is radical. Herein consists the 
great difference between constitutional government 
in the mother country and our own. In Great Brit- 
ain the struggle of centuries has been between King 
and Parliament, the predominance of executive or 
legislature; in the United States of to-day, public 
authority, whether of executive or legislature or 
judiciary, is but representative in theory, an authority 
of co-ordinate departments, and the people alone are 
sovereign and predominant. Thus, men learned in 
British law assert to-day that Parliament has at 
length triumphed, by virtue of a representative pop- 
ular authority irrevocable ; and that throughout the 
realm of Great Britain no fundamental limit can be 



INTRODUOTOEY. 3 

set to whatever Parliament may choose at any time 
to ordain. Settlers from the old country, at an age 
when the old struggle for royal prerogative merged 
into civil war, regicide, and the protectorate of Crom- 
well, our early American colonists ripened in the 
belief that there existed, even in the parent country, 
an English constitutional law, a " law of the land " 
for the people, which such documents as magna 
cliarta had formulated for individual protection in 
life, liberty, and property, and which neither a mon- 
arch nor Parliament could rightfully transgress. 
Such views had been upheld at home by the sturdy 
Coke, that Gamaliel of our pre-Revolutionary law- 
yers. For America, for these United States, at all 
events, no law, no system, can, since 1776, be deemed 
obligatory in a commonwealth but what originates in 
convention with the popular sanction ; and upon the 
solid pillars of such law, such a system, rests the 
whole fabric of sovereignty. A written constitution, 
therefore, whether rigid or elastic in expression, de- 
termines and defines the scope of all departments 
of government, of all government. That idea sprang 
from the primitive condition of American settle- 
ments, which was settlement under the constraints 
of a written charter. 

It is fit, then, that those written institutions should 
be studied and understood which are at the very 
base of American life and manners. But equally 
basic, by presumption, at least, in the spread of 
the Anglo-Saxon race, is that accretion of customs, 
shrouded as to origin in the darkness of the middle 
ages, which Blackstone pronounces " the first ground 
and chief corner-stone of the laws of England."^ 
This English common law was brought from Great 

1 Bl. Com. 73. 



4 CONSTITUTIONAL STUDIES. 

Britain to America, and propagated by our early col- 
onists wherever their settlements extended. Some 
famous men of our Revolutionary era contended that 
such consuetudinary law existed in these colonies 
only by force of early colonial legislation which ex- 
pressly recognized its operation ; others, with perhaps 
the better reason, that as originally liege subjects of 
Great Britain we brought that law to the new world, 
subject only to such express changes as might after- 
wards be found needful for adapting it to our new 
condition.! But all have agreed that by the time 
independence of Great Britain was declared in 1776, 
the English common law, with some such local 
variance and adaptation, had overspread the surface 
of American society, for the presumptive regulation 
of private rights ; and one great patriot, at least, is 
said to have declared that he would never have drawn 
sword against King George had he not believed that 
the common law still remained his birthright.^ 

Hence originates case-law, as it is termed, which, in 
its mighty accumulation of judicial precedents his- 
torically preserved for reference through the authentic 
reports of England and America, constitutes the first 
layer, so to speak, of our common State and Fed- 
eral jurisprudence. Unwritten law, it was formerly 
termed, as distinguished from the written law of 
positive enactment, which we first discussed, — 
mienacted, we should rather term it to-day, since in 
modern times reports of the appellate courts are 
nearly as accessible and as widely printed and circu- 
lated as statutes or the organic constitution itself. 
Modern reports are not, strictly speaking, the tech- 
nical transcripts of court records ; but prepared in a 
more readable shape, they supply, by way of narra- 

1 And see tlie language of colonial charters on this point, II. post. 

2 A remark attributed to John Adams. 



INTRODUCTORY, 5 

tive, a summary of the facts, in each decided case 
(which narration is often the court's own statement 
in the opinion rendered), together with a judicial 
opinion at full length disclosing the grounds upon 
which the decision was rendered. Leges et consuetu- 
dines regni was the accepted title of the English com- 
mon law in early times. No body of law can have 
developed so easily and so smoothly as that founded 
upon the customs of a homogeneous people by the 
gradual accretion of precedents. Customs make 
manners and shape manners. Custom or usage, in 
business or the household, for determining private 
rights and wrongs, precedes usually the law, though 
fundamental maxims were earlier ; a test case in the 
courts determines the full scope and legality of such 
usage ; and the precedent as recorded and published 
gives force and expansion to the custom, or else de- 
nies it on consideration of sound policy. Legislation, 
to be sure, may interpose with more violence and 
radical effect to change that custom, and with it the 
existing course of judicial precedents or procedure ; 
but, whether it be under court or legislative direc- 
tion, innovation or its suggestion must have^ begun 
usually in the ingenuity of society, feeling its own 
way over the surface of human existence and among 
the pitfalls of public sovereignty, towards some new 
combination of circumstances where former analogies 
are to be applied. And thus do judicial precedents, 
which, by their sequence, confirm principles in the 
course of an extended and novel application, come 
to supply society with a jurisprudence so wise, so 
tolerable, and so methodically progressive, that we of 
England and the United States may well wonder 
how civilized nations, professing popular institutions, 
could ever have got on well without them. Scholars 
have asserted that there was more of the a priori 



6 CONSTITUTIONAL STUDIES. 

assertion of law in the Roman methods of Justinian's 
age ; but, be that as it may, our Anglo-Saxon system 
prevails readily in modern application. Foreign jur- 
ists tell us that in colonies such as Canada, which 
have come from other nations under English influence 
and authority, the English system of reporting judi- 
cial cases and of developing the law from such re- 
ports has come into easy predominance. So is it, we 
might add, with Louisiana, Florida, Texas, and those 
other annexations to the United States where the 
law of continental France or Spain once shaped the 
rights of society. 

Precedents, like cobble-stones, pave the pathway of 
our common law, and that pathway stretches far back 
into time immemorial. So natural is the habit of 
relying upon precedents for smoothing out consist- 
ently the broadening avenue of human achievement 
that we find them, not for judicial development alone, 
but in ceremonial observances, in holiday celebrations 
and memorials, whether as concerning the State, the 
community of neighbors, or the family circle. Prece- 
dents take strong lodgment in the simplest mind; 
and the simpler the people, the more conclusive, as 
well as irrational, becomes their expression. Sir 
Frederick Pollock, in one of his essays on jurispru- 
dence, observes how readily a young cliild will cite 
precedents to justify conduct for which he is yet 
unable to allege a sound motive. " Why, father (or 
A) did so," is his excuse ; or, if pushed still more 
closely for a plea, " I did so yesterday, and you let 
me." Tribes and families living remote from civi- 
lized society pursue their peculiar customs, because 
such was the tribal or parental custom before ; as we 
see in the quaint dress or festivities which keep up 
old manners. With some simple village peasantry 
who have seen little of the enlightened world, novel- 



INTRODUCTORY. 7 

ties find little favor ; such folk are content to bake 
and brew and to pursue their sports as the genera- 
tions did before them. Precedents thus relied upon 
are of course not conclusively just and reasonable. 
But those precedents which in our own mosaic-work 
of the common law become established by the judg- 
ment of some intelligent tribunal, learned in what 
has been judicially established already, and skilful to 
apply, — of a tribunal fairly and honestly disposed to 
do justice according to the merits of each case, and 
composed of men selected for their superior legal 
wisdom and aptitude, who hear the arguments of both 
sides before deciding, and who have power to enforce 
the decision, — ought surely to carry the greatest 
weight as authority for a custom in any specified 
jurisdiction. 

Of public institutions, therefore, in an American 
modern State, any comprehensive study must take a 
threefold range : (1) There is the common or consue- 
tudinary law as the first stratum, that most particu- 
larly which prevailed at the original colonization of 
this country; (2) There is the legislative enactment 
or positive statute which displaces such common law, 
regulating and modifying so far as may be ; (3) There 
is the further written fundamental State constitution^ 
primitive enough in charter origin to control com- 
mon law at the colonial outset, which " as the act of 
the people speaking in their original character " ^ 
overrules and supersedes whatever in either custom 
or contemporaneous statute law proves inconsistent 
with its mandate, giving to local government and 
society a new progression. To this may be added (4) 
that the constitution of the United States and the 
acts and statutes of Congress and treaties pursuant 

1 1 Kent Com. 449. 



8 CONSTITUTIONAL STUDIES. 

thereto are the supreme law of this land, and para- 
mount in authority to custom, State statutes, or even 
the State constitution itself. American institutions, 
both State and Federal, we now proceed to examine 
in their consecutive order so as to trace out American 
ideas of government in their historical origin and 
development, as embodied in these third and fourth 
classes only of fundamental law. It should be ob- 
served, however, in passing, that many of those ideas 
which State constitutions usually put forward to-day 
as fundamental have in certain other States, whose 
organic law comprises less detail, worked into practi- 
cal expression as the less positive fiat of a State legis- 
lature, exercising its own unfettered discretion over 
the subject. 



II. 

THE COLONIAL GOVERNMENTS. 
1607-1776. 

Blackstone has classified the governments of our 
American colonies as follows : (1) Provincial ; (2) 
Proprietary; (3) Charter Governments.^ Such was 
doubtless their condition when he published his 
Commentaries, or shortly before the Revolution. 
Seven of these colonies, and in fact the majority, were 
of the first or Provincial class, — New Hampshire, New 
York, New Jersey, Virginia, North Carolina, South 
Carolina, and Georgia ; that is to say, in each of them 
a royal governor who was appointed by the British 
Crown served as royal deputy within the jurisdiction, 
under instructions which usually accompanied or fol- 
lowed his commission. Of Proprietary governments 
there were Maryland, Pennsylvania, and Delaware; 
and here some favored individual or family — that of 
Lord Baltimore, in the first named, and of William 
Penn in the other two — ruled with sub-royal 
dominion and subordinate powers of legislation. 
The Charter governments proper comprised at this 
late period only Massachusetts, Connecticut, and 
Rhode Island. 

Historically speaking, however, most of these thir- 
teen American colonies had been originally settled 
and established under a fundamental charter or grant 
of some sort from the British Crown, which served as 

1 1 Bl. Com. 108; 1 Story Commentaries, § 159. 



10 CONSTITUTIONAL STUDIES. 

a parchment basis of government ; most of their in- 
habitants had become habituated to a written funda- 
mental polity to which all local legislation had to 
conform, very much as in the by-laws of a chartered 
business corporation of to-day ; nor did the primitive 
government in such cases differ very greatly from 
that of our modern private corporation in committing 
the main general management of affairs to a President 
or Governor with a Board of Directors or Assistants, 
all of whom, under the most favoring circumstances, 
were chosen by the body of freemen or stockholders. 
In fact, the complaint against the Winthrops and Dud- 
leys of Massachusetts Bay and their followers had 
been that Avliat the Crown originally intended as a 
mere civil corporation within the realm had been per- 
verted across the ocean by the corporators into a full 
political establishment. Proprietary governments, 
moreover, were conducted by virtue of royal grants 
or charters. During the eighteenth century and for 
a long time prior to 1775, we find only Connecticut 
and Rhode Island possessed of charters which con- 
ferred a liberal authority upon the people, while 
Massachusetts lived under a royal charter which 
made its government scarcely less in practice of the 
provincial sort than that of Virginia. Both Virginia 
and Massachusetts had, in fact, experienced various 
charter vicissitudes since their earliest settlement; 
and the Massachusetts charter from William and 
Mary, dated 1691, was reserved and cautious in its 
allowance of self-government. On the other hand, 
the charters of Connecticut and Rhode Island from 
Charles II. — the one granted in 1662 and the other 
in 1663 — were so manifestly liberal in popular privi- 
leges that each served essentially through the Revo- 
lution and even beyond the eighteenth century as 
the fundamental constitution of an American State, 



THE COLONIAL GOVERNMENTS. 11 

though not democratic enough to stand long the pop- 
ular test of this nineteenth century. 

These early American charters afford a curious and 
interesting study. In the earliest of them we shall 
find ideas and expressions which have immensely 
influenced the development of manners and politics 
in this new world, not through the colonial era alone, 
but for all time. The idiosyncrasies of the several 
British monarchs who granted them appear moreover 
in their composition. James I. leads the list of 
grantors with that prolix, diffuse, and wordy style of 
expression so common in his age, recounting mar- 
vellous " providences " of a special cast ; Charles I. 
follows with a more concise style, as befitted a mon- 
arch of greater personal dignity ; through the times 
of Cromwell and the Commonwealth we find these 
colonies singularly neglected ; after which Charles IL, 
— from whose reign, frivolous though he was, so much 
excellent legislation takes its rise, — granted pres- 
ently the most liberal, and indeed the only thoroughly 
liberal and popular, American charters of this whole 
colonial age. From the final expulsion of the Stuarts, 
British policy held the American colonies well in 
check, so as to afford a rich market for British manu- 
factures and commerce, and, while encouraging colonial 
resources, to repress all tendencies to independence or 
disloyalty. All these charters or grants for American 
colonization were English in expression, except for the 
Maryland charter of 1632, which employed the Latin 
tongue, — a royal recognition, most likely, of rank 
and scholarship in Lord Baltimore, the beneficiary of 
Charles I., who was a devout Roman Catholic.^ 

1 Sir George Calvert, first Lord Baltimore, was the applicant for 
this charter, but, as he died before its execution, it was intrusted to 
his son, Cecil Calvert, the second Lord Baltimore. 



12 CONSTITUTIONAL STUDIES. 

The first charter of Virginia, which James I. issued 
in 1606, shortly before the primitive Jamestown set- 
tlement, granted the lands along our northern Atlantic 
coast to which Great Britain laid claim, between the 
34th and 45th degrees of north latitude, to two dis- 
tinct companies, one of which had its headquarters 
at London and the other at Plymouth, in the mother 
country. Organizing at once under this charter of 
1606, the London Company sought and obtained by 
1609 a new and enlarged charter as the " Virginia 
Company," for prosecuting its practical work of 
American settlement. Under the simple reign of 
James I. there were three different charters granted 
to this oldest of American colonies. The Plymouth 
Company reorganized in 1620 for the more northerly 
colonization of our American coast, and received that 
year from James I. another charter for " the planting, 
ruling, ordering, and governing of New England in 
America." Under this " New England charter " 
came the Pilgrims of the " Mayflower " to their new 
Plymouth of Massachusetts Bay ; and the agreement 
signed by them off Cape Cod before they came ashore 
bound the new settlers by common consent into a 
body politic, — a memorable transaction. Next came 
the charter of Massachusetts Bay, granted in 1629 
under Charles L, which by 1684, after the establish- 
ment of a most thriving colony, was cancelled by the 
English Chancery during the reign of James 11. , for 
alleged infractions of the royal grant. The new 
charter of William and Mary in 1691, to which we 
have alluded, annexed Plymouth finally to Massa- 
chusetts Bay and erected Massachusetts into a single 
colony. Unlike the previous Massachusetts charters, 
that of 1691 designed a full political government. 

The Pennsylvania colony, whose proprietary char- 
ter to William Penn passed the seals in 1682, ex- 



THE COLONIAL GOVERNMENTS. 13 

hibits various fundamental documents which testify 
to the prudent and thrifty management of this excel- 
lent Quaker and his philanthropic and statesmanlike 
views. By virtue of his legal supremacy, Penn as 
Governor prescribed from time to time a frame of 
government with increasing liberality, and under the 
document of 1701 granted broad political powers 
with the specific approbation of the Pennsylvania 
General Assembly, and of the Governor's Council, 
under an express proviso that no change should be 
made in these fundaments without the joint assent of 
the Governor and six-sevenths of the Legislature. 
This famous document of 1701, known as Penn's 
"Charter of Privileges," declared full liberty of 
religious conscience, in an article pronounced inviol- 
able and forever incapable of amendment. Among 
other provisions it enlarged the English common law 
by according to criminals the same privilege of wit- 
nesses and counsel as their prosecutors,^ and abolished 
the common-law forfeiture which attached to suicides 
and death by the " deodand." ^ William Penn's 
charter of 1701 to Delaware is of a similar scope; 
and this latter domain which came to William Penn 
as proprietor in 1682 and by quitclaim from the 
Duke of York was known in early colonial times as 
" The Territories." 

The first of the so-called Carolina charters — for 
North and South Carolina were long colonially united 
— antedates the permanent English settlement of 
this Atlantic coast, having been granted to Sir 
Walter Raleigh in 1584 by Queen Elizabeth. That 
charter really constitutes the first step in the work of 

1 See Article VI., amendments to the Constitution of the United 
States, embodying this same feature. 

2 This, provision, in essentially the same language, found its way 
into several early State constitutions. 



14 CONSTITUTIONAL STUDIES. 

British colonization in America ; and five voyages, all 
of them unsuccessful in planting a colony, Avere made 
under it. The charter of 1663 for Carolina was 
granted by Charles II. to various English peers as 
lords proprietors, and John Locke's fundamental con- 
stitution, drawn up at the instance of these privileged 
OAvners for the settlers, followed in 1669 to last only 
for a brief and turbulent period. Although this 
scheme of the broadest political philosopher of his 
age proved a practical failure, as history has recorded, 
setting prerogative, as it did, high above self-govern- 
ment in the new world, seeking to establish a feudal 
tenure in the primeval soil, avowing the absolute 
power and authority of every freeman over his slaves, 
and declaring the Church of England the orthodox 
religion of the colony, it had some good points in 
minor details. Probably much of this ill-adapted 
constitution Avas made by its framer to order, and did 
not embody Locke's personal vicAVS. 

With some of these colonial charters went out 
spontaneously the good-Avill of the sovereign Avho 
granted it. The grants of Charles II., in particular, 
breathed lovins^-kindness to his beneficiaries. In the 
charter to William Penn he recounts that love and 
pliilanthropy of the latter to the native Indians 
Avhich his OAvn royal ancestors had enjoined ; and the 
monarch gave and confirmed the name "Pennsyl- 
vania" to the colony after the family surname, — a 
token of royal favor toAvards a private subject Avith- 
out an American parallel. Charles II. had granted 
the popular charters of Connecticut and Rhode 
Island, nearly twenty years earlier, in affectionate 
language. To our " loving subjects " is the ex- 
pression of the Connecticut charter. In that of 
Rhode Island (1663) the monarch makes special men- 
tion that these settlers, Roger Williams and his com- 



THE COLONIAL GOVERNMENTS. 15 

panions, had been harshly treated for their religious 
views by the other New England colonies ; he recog- 
nizes " their peaceable and loyal minds," " their sober, 
serious, and religious intentions," their self -exile, and 
their prosperity and preservation " by the good Provi- 
dence of God, from whom the Plantations have taken 
their names." ^ And to these good subjects the King 
plainly offers himself to be their champion, promising 
to protect them against all molestation from their 
neighbors ; and in all controversies between Rhode 
Island and the other New England colonies which 
might arise, this colony is specially invited to appeal 
to the Crown for redress.^ 

Emanating from the same national source, and 
embodying a single national purpose, we may expect 
to find these English colonial governments closely, 
on the whole, resembling one another in essentials ; 
at the same time that differences of local origin and 
development give rise to local differences in their 
public management. 

1. As to the structure of colonial government. 
There was not in these earlier days any marked sepa- 
ration of fundamental pov/ers such as Montesquieu 
has inculcated. But the British monarchs after 1688 
strongly favored the establishment of a strong royal 
executive or vicegerent in each colony, with powers 
commensurate for holding the settlers in allegiance 
to Great Britain, and an appointment immediately 
dependent upon the Crown. Such was the royal gov- 
ernor in those provincial governments which consti- 
tuted a majority of the American colonies ; and such, 
too, regardless of her former usages, or of the favor 

1 " Rhode Island and Providence Plantations " was the early style 
of this colony, 

'-^ See Poore's Charters and Constitutions, passim. 



16 CONSTITUTIONAL STUDIES. 






still accorded to her neighbors, Rhode Island and 
Connecticut, was the governor imposed upon Massa- 
chusetts under the William and Mary charter. Lieu- 
tenant-Governor and Secretary were for Massachusetts, 
and in most, if not all, such provinces as recognized 
these lesser officials, appointed directly by the British 
Crown ; while in certainly eight colonies the King 
commissioned the Governor, or chief executive, as 
his own immediate representative or deputy, styling 
him captain-general and commander-in-chief over the 
jurisdiction, as well as chancellor, vice-admiral, and 
ordinary. In our American provinces the Crown 
also appointed, directly or indirectly, a "Council," 
whose chief function, resembling more or less that of 
a board of directors, was to advise and assist the 
Governor in his executive duties. Tliis council held 
secret sessions and possessed often a share in legisla- 
tion, like an upper House. But the Massachusetts 
charter of 1691 so far respected ancient local usage 
as to permit the Council of that colony to be ap- 
pointed annually from the representative assembly 
(or " Great and General Court "), and thus operate 
somewhat as a popular check upon the royal gov- 
ernor's action.^ With advice of Comicil,^ a provin- 
cial governor had usually the power to establish local 
coui'ts, and to appoint judges and other colonial 
magistrates and officers ; and each provincial capital 
tended to become the seat of a court and official 
circle which reflected with paler brilliancy the cere- 
monials of a London monarch.^ 

1 The Governor had, however, a negative upon this choice of a 
Council. 1 Story, Commentaries, § 171. 

2 Under the Massachusetts charter (1691) all appointments bv the 
Governor required coutirmation by the Council upon seven days' no- 
tice, — a practice preserved in that State to this day. 

8 See Poore's Charters and Constitutions ; 1 Story, Commentaries, 
§ 159 and citations. 



THE COLONIAL GOVERNMENTS. 17 

As a popular offset to all this, representative gov- 
ernment and the legislature bloomed out early in each 
American colony, and the British Crown made no 
effort to eradicate it. On the contrary, the royal gov- 
ernor's commission gave him authority usually to 
convene, at stated times, a general assembly of repre- 
sentatives of the freeholders and planters ; and under 
such authority Provincial Assemblies, composed of 
the Governor, the Council, and the Representatives, 
were constituted; the Council serving perhaps as a 
separate branch or upper house for such legislation, 
while the Governor possessed a negative upon all leg- 
islative proceedings, and very considerable latitude, 
besides, to prorogue, adjourn, and dissolve the Legis- 
lature, or to convene it whenever and wherever he 
might think fit.^ 

While colonial legislation would thus seem vested 
usually in two houses, one body only, like the Eng- 
lish House of Commons, came close to the heart of 
the local constituency, — as in Virginia, for instance, 
whose "House of Burgesses" struck the early chord of 
revolution, reckless of governor and royal councillors 
alike. That phrase, " General Court," so long applied 
to this representative assembly in Massachusetts, did 
not originate locally even in its earlier charters ; ^ but 
for both Virginia and Massachusetts the old " General 
Court " had its terms or sessions defined like those of 
an English court of justice ; and in its operations it 
blended judicial, legislative, and even executive au- 
thority as a final appellate tribunal of the colony in 
all matters. In Massachusetts, as in most other 
colonies, the Legislature was authorized ^ to levy taxes, 

1 See Poore's Charters and Constitutions ; 1 Story, Commentaries,, 
§ 159 and citations. 

2 See Virginia charter of 1611-12, in Poore, 1905, which prescribes 
a " General Court " for that primitive colony. 

2 And so expressed under the charter of 1691. 

2 



18 CONSTITUTIONAL STUDIES, 

and otherwise pass laws for the common interest; 
and yet so great was her royal governor's power, on 
the one hand, as specified in the charter of William 
and Mary, and so ill-defined, on the other, that of the 
" General Court," that two constitutional doubts had 
to be resolved in 1726, by a supplementary charter 
from George I. That sovereign did not incline 
strongly to the side of the local colonists in this con- 
troversy; for he ruled (1) that, as to choosing a 
speaker, the General Court might make such choice 
subject to the approval of the Governor, and (2) that, 
as to its right to adjourn, the General Court might 
adjourn for two days, but no longer, without the 
Governor's consent.^ 

In Connecticut and Rhode Island, however, the 
two favored jurisdictions of royalty, legislation, the 
choice of a governor, and the whole business of con- 
stituting courts and bestowing official patronage were 
confided fully by royal grace to the free settlers ; and 
those two colonies, under their respective charters, 
organized local government, as they were permitted 
to do, upon a popular and republican basis. Here 
the Governor, Council, and Assembly continued an- 
nually chosen by the freemen down to the American 
Revolution, and all other officers were appointed by 
their authority .^ Annual elections prevailed here as 
elsewhere in America, so far as there were popular 
elections at all, — whence the maxim, familiar a cen- 
tury ago, that " wherever annual elections end tyr- 
anny begins," — and the colonial assembly moreover 
held annually its wonted sessions. But the circum- 

1 Poore's Charters and Constitutions (Massacliusetts). 

2 1 Story, Constitutions, § 161, observes that while the Statutes of 
7 and 8 William III. required that all gorernors appointed in charter 
or proprietary governments should be approved of by the Crown, this 
statute was, " if at all, ill observed," and produced apparently no 
change in the colonial policy. 



THE COLONIAL GOVERNMENTS. 19 

stances of original settlement in Connecticut and 
Rhode Island had produced the anomaly of double 
capital towns and rivals ; so that under their respec- 
tive charters the legislature regularly met twice a 
year, rotating in the one colony from' Hartford to 
New Haven, and in the other, from Providence to 
Newport, — a condition which long outlasted this 
colonial era. 

In the three proprietary governments — Maryland, 
Pennsylvania, and Delaware — the grand proprietor 
exercised his sub-royal prerogative of appointing 
governors answerable to himself, as likewise of be- 
stowing the colonial patronage, and defining legis- 
lative authority. Hence we find Penn's " Charter of 
Privileges " in 1701 proclaiming freely that hence- 
forth there shall be an annual Assembly in Penn- 
sylvania, with power to choose its own speaker and 
other officers, to judge of the qualifications and elec- 
tions of its own members, to prepare and pass bills, 
to impeach criminals, to redress grievances, and to 
exercise "all other powers and privileges of an as- 
sembly according to the rights of the free-born sub- 
jects of England, and AS is usual in any of the 
King's Plantations in America." ^ And in certain 
appointiTients to ofiice, a compromising expedient is 
set forth in that document, long traceable in the 
fundamental law of Pennsylvania as a State, which 
empowered the freemen to choose a double number, 
leaving the Governor to select one or the other for 
the office. Here, as in all our other American colo- 
nies except Connecticut and Rhode Island, legislation 
by the popular branch required the Governor's specific 
approval, and his veto of a measure was absolute. 

Some minor differences may be observed in respect 
to the mode of enacting laws in the several colonies ; 

^ Poore's Charters and Constitutions (Pennsylvania). 



20 CONSTITUTIONAL STUDIES. 

and yet the legislature, of which at least one branch 
the people might freely choose to represent and de- 
fend their collective interests, became early a palla- 
dium of the American system inseparable from popular 
liberty, though in the earliest of these American 
charters no such provision was clearly set forth. For 
free-born Britons were not likely to endure long the 
exercise of arbitrary power by king or incorporators 
in this new world.^ By the eighteenth century, there- 
fore, this right of colonists to participate by their 
representatives in all local legislation was fairly con- 
ceded by the home government ; but as to provincial 
governments there continued a controversy. For pro- 
vincial colonists contended that such representation 
was a matter of right ; but the Crown and its legal 
advisers, that representation was a privilege only, 
subject to the pleasure of the parent government. 
In the political struggles from time to time which 
culminated under George III. in bloodshed, the royal 
governor would harass the colonial legislature to the 
extent of his ample authority, or would long neglect 
to convene it, — practical mischiefs which our Declara- 
tion of Independence boldly denounced, and which 
many a bill of rights or constitution in tlie revolting 
States of America took care to guard against for the 
future.^ 

1 Mr. Hutchinson, in his Colonial History of Massachusetts, 94 
(cited 1 Story, Constitution, § 166), sketches admirably the progress 
made in all these early colonies, except Maryland (whose charter made 
express provision), before the reign of Charles II., in establishing a 
representative legislature of some sort and forcing its recognition 
upon the chartered proprietors or incorporators. " After the restora- 
tion (1688)," he adds, " there is no instance of a colony settled without a 
representation of the people, nor any attempt to deprive the colonies 
of this privilege, except in the arbitrary reign of King James the 
Second." 

2 In the colony of New York (and semhle in Virginia also) the 
British Crown before the middle of the eighteenth century succeeded in 



THE COLONIAL GOVERNMENTS. 21 

The germ of popular government in the earlier 
colonial charters consists, like that of all private guilds 
or corporations at the common lav/, in bringing the 
whole body of stockholders or those immediately con- 
cerned with affairs into an annual meeting for the 
election of managing officers. Such is the component 
element of government in that admirable system of 
New England towns, whose inhabitants came together 
once a year to discuss and arrange local affairs and 
to choose their selectmen. And to some extent any 
colony newly planted and small in numbers might 
conveniently assemble at stated times for the general 
regulation and control of affairs ; but as new settlers 
scatter over the territory and extend as well as local- 
ize their interests and population, either the proxy or 
the representative principle comes soon into play. 
Representation serves the convenience of modern 
civil government popularly conducted, as does the 
proxy in private corporations. According to the 
expression of the Connecticut charter of 1662,^ an 
option was given the settlers to hold either " a general 
meeting " of the freemen or a representative assembly, 
and the colonists naturally enough chose the latter. 
*But popular representation as sanctioned by Charles II. 
and the seventeenth century was too crude to last, 
based as it was in Connecticut upon precise town 
equality ; while in Rhode Island, Newport was 
allowed the permanent precedence over all other 
towns of the colony. Providence included, which 

establishmg septennial assemblies, in imitation of the septennial Par- 
liaments of the parent country, " which was a measure so offensive to 
the people that it constituted one of their grievances propounded at 
the commencement of the American Revolution." 1 Story, § 167. 

1 "A body corporate and politic by the name of the governor and 
company of the English Colony of," etc., is the title employed in the 
Connecticut and Rhode Island charters of Charles II-, the best fruition 
of these royal American charters. 



22 CONSTITUTIONAL STUDIES. 

were classed in political power by two set grades. 
Some towns grow into great cities, while others de- 
cline or become stagnant ; and such a fixed basis of 
town representation, which left no chance to apportion 
by population, doomed at length these most lasting 
of all colonial charters more than any other defect in 
them ; for being charters and royal ones, there was 
left no chance to amend them. Representation by 
towns instead of numbers was long the British fashion 
on either side of the Atlantic ; but the Massachusetts 
charter (1691) from William and Mary provided with 
a wiser foresight that the colonial legislature might 
alter later at its discretion the basis of town represen- 
tation drawn up in the instrument. And, in fine, the 
flexibility of provincial over charter governments in 
all such fundamental matters was doubtless a reason 
for preferring them upon experience in the colonial 
policy of the parent country.^ 

2. As to the fundamental safeguards of allegiance 
to Great Britain. Besides the practical constraint 
which any royal governor might have exerted while 
clothed with the ample powers we have enumerated, 
were certain fundamental expressions in these colo- 
nial charters, which bound grantees and the colonists 
to both legal and moral compliance. All thirteen of 
these American colonies lived under fundamental re- 
strictions tliat no laws should be made repugnant to 
those of England, or that as nearly as convenient 
the laws should be consonant with and conformable 
thereto ; and either expressly or by necessary impli- 
cation it was provided that the laws of England 
should be in force in the colony so far as applica- 

1 As already shown (p. 13), Penn's "Charter of Privileges" 
(1701) was made capable of amendment under certain stringent 
conditions. 



THE COLONIAL GOVERNMENTS. 23 

ble.^ In the latest and most liberal charters this 
written reservation was still expressed as in the early 
Virginian document of 1609. 

Thus were our American colonists nurtured and 
brought up in the knowledge of a fundamental re- 
straint upon local legislation; and this, aside from 
that other written constraint upon local government 
which the charter itself imposed. Some power ex- 
ternal to the colonial legislature must have existed 
for determining the validity of its enactments; and 
that paramount power the parent government nat- 
urally claimed as its own. Besides the royal gov- 
ernor's vigilant exercise of a negative upon such 
local colonial legislation, the British monarch re- 
served his own right to approve or disapprove, — a 
prerogative exercise from which Maryland, Connecti- 
cut, and Rhode Island alone were exempt. ^ Pa- 
rental supremacy was still further aided by the 
judicial appeal which lay from the decisions of all 
colonial courts to the English privy council, — a 
practice which, on the whole, seems to have been 
deemed by our colonists a privilege rather than a 
grievance.^ Except, however, for repugnant enact- 
ments, the colonial legislatures in America exercised 
a broad local authority, particularly in matters of 

1 Such a declaration was conclusive and could not afterwards be 
abrogated by tlie Crown, being a fundamental rule of the original 
settlement. 1 Story, § 156. 

2 " In all the other colonies [except Maryland, Connecticut, and 
Rhode Island] the King possessed the poAver of abrogating them [the 
laws], and they were not final in their authority until they had passed 
under his review." 1 Story, § 171. See also statute 7 and 8 Wil- 
liam III. c. 22, declaring expressly that all colonial laws, by-laws, 
usages, and customs repugnant to any law of the kingdom, shall be 
utterly void. 1 Story, § 164. 

2 About the year 1680, Massachusetts, Rhode Island, and Con- 
necticut inclined to dispute this right of appeal, but the contention 
subsided. 



24 CONSTITUTIONAL STUDIES. 

local taxation.^ Oatlis of allegiance, finally, or the 
"freeman's oath," were much relied upon for binding 
a subject in conscience to his British sovereign, under 
penalties of perjury. 

3. As to civil rights. Except for Pennsylvania, 
the charters under which these colonies were first, 
settled are found to contain an express royal declara- 
tion that all subjects and their children inhabiting 
therein shall be deemed natural born, and shall enjoy 
all the privileges and immunities of such subjects.^ 
In some of them the King furthermore concedes ex- 
pressly the right of his grantees to transport to the 
new colony all such British subjects and strangers as 
are willing to go.^ The Virginia charter of 1606 set 
the example of a royal guaranty of indemnity to all 
English subjects and those of allied powers, against 
robbery and spoliation by his colonists. 

Under the Connecticut and Rhode Island charters, 
self-government was freely committed to the ''free- 
men " of the colony ; while other royal grants less 
democratic confined suffrage to "freeholders" or 
men of specified property among the colonists. 

4. As to inter-colonial rights. All British dwellers 
in the American colonies were fellow-subjects of 
the mother country, and for many purposes were to 
be deemed one people ; each one might lawfully in- 
habit other colonies, or inherit lands in them by 
descent.* Charters themselves, however, were gen- 

1 For the issue of taxation as an inherent right in the colonial 
legislatures (which more than any other provoked the American Revo- 
lution) see 1 Story, Constitutional Law, §§ 166-170. 

2 1 Story, § 156. 

^ See, e. g., Massachusetts charter of 1629; Connecticut charter of 
1662. 

4 1 Story, § 178; Jay, C. J., in 2 Dall. 470. 



THE COLONIAL GOVERNMENTS. 25 

erally silent on such points ; but we find Charles II., 
out of his special solicitude for the persecuted Rhode 
Islanders, asserting expressly in their charter of 1663, 
that they may repass and trade with his other Eng- 
lish colonies. Commercial intercourse, not, of course, 
without some rivalry and collision, began very early 
among these colonies;^ and the regulation of such 
intercourse, as well as of extradition and other recip- 
rocal conveniences, soon engaged their peculiar atten- 
tion, as we shall show later.^ 

5. As to religious freedom and philanthropy. 
Colonies as to matters of faith differed both in 
tenets and practice, being Protestant, however, in 
the main, and imbued with the prevalent spirit of the 
English Reformation. Liberal religion, or rather 
the desire to escape conformity to church establish- 
ments at home and to enjoy freedom of religious 
faith in the new world after some new method, 
operated as a powerful incentive to American emigra- 
tion, even where the mind might not yet have been 
open to full religious tolerance. Yet the genius of 
these new world institutions tended unquestionably 
to religious liberty, and in the Pennsylvania and 
Rhode Island colonies guaranties for the rights of 
conscience were already promulgated, very broad for 
the age. " All confessing one God in any way shall 
live unmolested," declares in substance Penn's Char- 
ter of 1701, " and all professing belief in Christ shall 
be capable of serving in office in the colony," In the 
Massachusetts charter of 1691, on the other hand, 
granted while the expulsion of a Roman Catholic 
dynasty was fresh in the British mind, William and 

1 See the arrival of a Maryland vessel in Massacliusetts Baj, chron- 
icled in Winthrop's Journal, October 14, 1634. 

2 See Tendencies to Union, Part II., post. 



26 CONSTITUTIONAL STUDIES. 

Mary gave direction that liberty of conscience be 
allowed to all inhabitants "except Papists." 

The Stuarts had cherished the laudable wish of 
converting the American Indian to civilized arts and 
Clnistianity; and James I., in his first charter to 
Virginia (1606), zealously commended ''so noble a 
work" in the propagating of Christian religion to 
such people as yet live in darkness and miserable 
ignorance of the true worship of God, so as in time 
to "bring the infidels and savages living in those 
parts to human civility and to a settled and quiet 
government." Little practical success, it is well 
known, attended such humane efforts by the Anglo- 
American except in Pennsylvania ; and philanthropic 
sentiment towards the red race prevailed most strongly 
in this colonial age among benefactors whose hearts 
dilated at a safe distance. 

6. As to trade and business occupation. British 
policy towards these American colonies developed, as 
history shows, in opening up on this western Atlantic 
coast a grand market for home manufactures, while 
stnnulating the loyal and industrious settlers to cher- 
ish and supply the natural productions of this new 
region in return, thus giving scope to a lucrative 
British commerce. That the southern colonies, with 
their plantations of tobacco, rice, and indigo, were 
fostered difPerently from the northern cannot be 
doubted. Charters, to be sure, had little to promul- 
gate for an economic policy; but those of New Eng- 
land, whose hardy inhabitants pursued the cod and 
whale into distant waters, repeatedly commend and 
encourage the "trade of fishing " towards the close 
of the seventeenth century; the Rhode Island charter 
m 1663 containing sundry royal details as to " the 
business of taking whales." 



THE COLONIAL GOVERNMENTS. 27 

It is curious to observe that, in emulation of Spain, 
these English charters of the seventeenth century, 
beginning with Virginia, reserved specifically to the 
crown one-fifth of all such gold and silver as the 
chartered colony might produce. That of Massachu- 
setts, in 1691, added one-fifth of all precious stones ; 
while Penn's charter, which passed the seals ten years 
earlier, required two beaver skins a year, besides the 
talliage of gold and silver. Had the King levied 
upon Pennsylvania coal and iron, it might have been 
more to the purpose ; for the present exaction could 
have yielded very little to the King's treasury. 

7. As to land tenure. Under all our colonial 
charters, — James I. setting for Virginia the earliest 
example, — the new soil in America was to be held 
from the Crown in free and common socage, com- 
pletely divested of all feudal burdens such as con- 
tinued to encumber land tenure in the mother country 
until after the restoration of Charles II. An ines- 
timable privilege this to America ; for it encouraged 
these Atlantic settlers to become freeholders, owners 
severally of the soil they cultivated in fee and inde- 
pendently, without lease or manorial encumbrance at 
all.^ " Partly from the cheapness of land, and partly 
from an innate love of independence," observed Judge 
Story from his native standpoint, more than fifty 
years ago, "few agricultural estates in the whole 
country have at any time been held on lease for a 
stipulated rent. The tenants and occupiers are al- 
most universally the proprietors of the soil in fee- 
simple. Strictly speaking, therefore, there has never 

1 Manorial estates were permitted under some charters, as in New 
York, but they soon faded into insignificance. The almost total 
absence of leasehold estates in our colonial history is a remarkable cir- 
cumstance. 1 Story, § 172. 



28 CONSTITUTIONAL STUDIES. 

been in this country a dependent peasantry." The 
yeomanry, he adds, are absolute owners of the soil on 
which they tread, and their character has from this 
circumstance been marked by a jealous watchfulness 
of their rights and by a steady spirit of resistance 
against every encroachment.^ 

Connected with such simplicity of tenure, a simple 
real-estate system was seen to prevail in the Ameri- 
can colonies from the earliest times, both with regard 
to the language of the deed itself which made con- 
veyance and the public record of land titles. We 
find John Locke's charter of 1669 establishing in the 
Carolinas a registry of deeds for each convenient 
precinct ; and the same registry system sprang up so 
spontaneously in the other colonies, north and south, 
as to have become general here a century before 
Blackstone was seen doubtfully commending a scheme 
of public records for general adoption at home in 
evincing real-estate title, in place of the time-honored 
family chest crammed with old parchments.^ 

1 1 Story, 173. 

2 2 Bl. Com. 343. Pennsylyania's Frame of Government in 1683 is 
seen (§§ 20-23) providing for an extensive registry system in the 
colony, for wills, births, marriages, etc., as well as the record of 
conveyances. 



III. 

REVOLUTIONARY BILLS OF RIGHTS. 

1776-1783. 

When in 1776 these American colonies shook off 
the British yoke and proclaimed independence, their 
leading statesmen were familiar with the English 
"Declaration" or "Bill of Rights," that glorious 
enactment under which in 1689 the crown was settled 
upon William and Mary to the final exclusion of the 
Stuarts. These statesmen knew also the funda- 
mental precepts of Magna Gliarta and of the "Peti- 
tion of Right " and Haheas Corpus act, — documents 
dear to a British ancestry that had contended stoutly 
for individual freedom. Other maxims they formu- 
lated by experience, and while brooding over Amer- 
ica's immediate wrongs sustained in the vexation of 
her colonial legislatures by the royal governors and in 
the tyranny of standing armies imported to overawe 
the people. Other shining truths of political govern- 
ment had been embodied from early colonial times in 
local codes and documents, such, for instance, as the 
Massachusetts "Body of Liberties " of 1641. Mon- 
tesquieu, whose " Spirit of the Laws " had lately been 
translated into English and widely circulated, was 
the new political oracle of an age not too far remote 
from the times of Locke, Sidney, and Vane to 
cherish their precious remembrance. Hence, with- 
out the need of tracing back an origin to times or 
countries more remote, those bosom truths of politics 



30 CONSTITUTIONAL STUDIES. 

which found expression, during this revolution of 
the thirteen colonies, in what their several constitu- 
encies were wont to style a "Bill of Rights," basic 
as the structure of constitutional government itself. 

"Bill of Rights " may be thought a less appropriate 
phrase here than in England, to denote these fun- 
damental maxims of life, liberty, and property, essen- 
tial to civil liberty; for while the English "Bill of 
Rights " is an act of legislation (or bill) proceeding 
from the omnipotent Parliament (though not without 
some special royal sanction), a "Bill of Rights" for 
an American State originates in popular convention 
and forms part of that written body of fundamental 
law to which all legislative, all executive, and all 
judicial authority must submit and be held subject. 
Nor with America is it even a constitutional contract 
(as in one sense perhaps was the English legisla- 
tion of 1688) between sovereign and representatives 
of the people, two great departments of government ; 
since the same people and their representatives in 
convention who declare these rights may separate and 
define at their discretion all the departments of all 
the powers of government, whether executive, legis- 
lative, or judicial, and clothe them with their several 
functions. A "Declaration of Rights," like a "Dec- 
laration of Independence," is for America the fitter 
phrase; and both the United Colonies in Congress 
and various individual colonies were seen in 1776 
setting the precedent of declaring such primitive 
and fundamental truths before essaying the more 
formidable work of framing a practical scheme of 
government. 

Nor is this "Declaration" or "Bill of Rights" 
easily distinguishable in all respects from that scheme 
of practical government with which a written consti- 
tution should be mainly occupied. Various leading 



REVOLUTIONARY BILLS OF RIGHTS. 31 

truths essential to liberty are enjoined among the 
chartered particulars of government, which a philo- 
sophic mind would look for rather in the blazing 
introduction. When the Federal constitution, fresh 
from Philadelphia, was opposed for its want of a 
formal "Bill of Rights," several such safeguard 
maxims were pointed out as they glittered among the 
details of national authority proposed by that original 
instrument. And State experience for more than a 
century shows besides that, however well-drawn may 
be our schedule of civil rights, other precious gen- 
eralities, equally fundamental, appropriate, and obliga- 
tory, are likely to be found scattered conveniently 
enough among the main provisions of the charter. 

Virginia, first in years and influence among these 
American colonies, led off, that memorable year, in 
preparing the platform of human freedom, after the 
Continental Congress had given its momentous warn- 
ing to the States that independence approached and 
that self-government must be provided for. The 
Virginia " Bill of Rights " (styled originally a Decla- 
ration of Rights " pertaining to the people and their 
posterity " as the basis and foundation of government) 
preceded by nearly a month the "Declaration of 
Independence " at Philadelphia, though framed for 
concurrence and designing full harmony with Con- 
gressional action anticipated. A representative con- 
vention, comprising many members of the Virginia 
House of Burgesses, met at Williamsburg, May 6, 
1776, and unanimously adopted this Declaration of 
Rights on the 12th of June, as preliminary to the 
work of framing a State constitution. The instru- 
ment was drawn up by that friend of freedom, the 
illustrious George Mason, and the convention only 
slightly amended it. Its preamble and introductory 



32 CONSTITUTIONAL STUDIES. 

clauses, taken from ^ draft which Jefferson had sent 
from Philadelphia, where he was composing the more 
famous document of these United Colonies, proclaim 
those same innnortal rights of life, liberty, and the 
pursuit of happiness, in the individual, and that 
same institution of all government for the benefit and 
security of the governed, who have the unalienable 
right to reform, alter, or abolish as may most con- 
duce to the general weal. 

All power, declared further the Virginia Bill of 
Rights, is vested in and derived from the people, and 
magistrates are their trustees and servants. No 
man or set of men is entitled to exclusive emolu- 
ments or privileges from the people, but in considera- 
tion of public services, which are not descendible, 
so that office should not be hereditary. Elections 
of representatives ought to be free,^ with a right of 
suffrage here broadly stated; nor should those of 
the community *' be taxed or deprived of their prop- 
erty for public uses without their own consent or 
that of their representatives. "^ There should be 
no suspension of laws or of their execution without 
consent of the representatives of the people.^ In all 
criminal prosecutions, a man has a right to know the 
cause and nature of his accusation, to be confronted 
with the Avitnesses and accusers, to call for evidence 
in liis favor, and to be tried by an impartial jury of 
the vicinage, without whose unanimous consent he 
cannot be found guilty. He cannot be compelled to 
give evidence against himself; nor can he be deprived 
of his liberty except by the law of the land and the 

1 From English Bill of Eights. 16S9 (Eight S). 

^ A protest against the colonial stamp and excise acts of Par- 
liament. 

^ From English Bill of Eights (Bights 1 and 2) ; and see abuses by 
royal governors in these colonies, recited in Declaration of Independ- 
ence. 



REVOLUTIONARY BILLS OF RIGHTS. 33 

judgment of his peers. ^ Excessive bail ought not to 
be required, nor excessive fines imposed, nor cruel 
and unusual punishments inflicted. ^ General search- 
warrants ought not to be granted, but only specific 
ones. 3 Even in civil suits the ancient trial by jury 
is the preferable mode, and ought to be held sacred. 
Freedom of the press is one of the great bulwarks of 
liberty.^ A well-regulated militia is the natural and 
safe defence of a free state ; standing armies in time 
of peace are dangerous to liberty ; and in all cases the 
military should be strictly sulDordinate to the civil 
power. ^ People have the right to uniform govern- 
ment, and no government separate from Virginia 
ought to be erected within its limits.^ No free gov- 
ernment can be preserved, " but by a firm adherence 
to justice, moderation, temperance, frugality, and 
virtue, and by frequent recurrence to fundamental 
principles." Of the sixteenth and final clause, advo- 
cating religious toleration, we shall make further 
mention presently. 

Expressed in concise and admirable language, the 
Virginia Bill of Rights (whose sixteen sections we 
have thus condensed) was broad and universal in 
sentiment, breathing the spirit of human brotherhood, 
without a hint of race or class subjection. The 

^ Last clause is from Magna Charta ( a. d. 1215), the famous § 45, 
whose general idea was aided by the recollection of wrongs under 
George III. (see Declaration of Independence), in depriving colonists 
of jury trial and transporting them to be tried across the seas. 

2 From English Bill of Rights, verbatim {Right 10). 

2 Recalling abuse of " writs of assistance " under George III. 

* A new maxim in its present expression. But cf. English Bill of 
Rights (Right 9) as to freedom of speech in Parliament. 

° See standing army grievances under the King recited in Declara- 
tion of Independence, also English Bill of Rights (Rights 6 and 7). 
Dependence upon a militia is more strongly asserted than hitherto, 

6 This seems to have had a local and immediate reference to the 
Revolution of 1776. The separation of West Virginia during 1861-65 
suggests a thoughtful commentary. 

3 



?4 CONSTITUTIONAL STUDIES, 

declaration served well for example to the other 
twelve States ; and so proud of this instrument have 
Virginians remained that they affixed it unchanged 
to their new constitution of 1830, and, amending it 
but slightly for the constitution of 1850, incorporated 
it once more intact in the new framework of 1864. 
With such further sections as civil war and the for- 
cible abolition of slavery next compelled (though not 
for changing a single sentence) that " Bill of Rights " 
remains to this day, permanent in its original 
assertions. 

Among other American " Bills of Rights " of the 
Revolutionary era, that of Pennsylvania next deserves 
attention. From the State and city whose liberty 
bell proclaimed independence through all the land, 
emanated, soon after the adjournment of our Con- 
tinental Congress, a novel scheme of State govern- 
ment, preceded by its own " Declaration of Rights. " 
This was the work of a State convention which sat 
from July 15 to September 28, 1776. The Pennsyl- 
vania "Declaration," like that of Virginia, consisted 
of sixteen articles, which adopted most of that earlier 
document, with slight variations of language. " All 
elections ought to be free " is the happier Pennsyl- 
vania assertion, enlarging the English and Virginia 
formulas ; ^ and all freemen having a common public 
interest (the document adds) have the right to elect 
or be elected to office. Again (improving upon the 
Virginia expression) the accused in criminal prosecu- 
tions " hath a right to be heard by himself and his 
counsel. "2 Quaker sentiment is honored by an 

1 Pennsylvania Declaration, No. 7. See supra, page 32. 

^ Penn's Charter of Liberties, art. v. (1701) expressly concedes to 
all criminals "the same privileges of witnesses and counsel as their 
prosecutors," — a decided gain upon the common laAV of England. 



REVOLUTIONARY BILLS OF RIGHTS. 35 

express pecuniary exemption for such as are con- 
scientiously scrupulous of bearing arms. That fre- 
quent recurrence to fundamental principles which 
Virginia enjoins is reinforced by a hortatory sentence 
which does not add dignity to the article. In the 
fifteenth and sixteenth Pennsylvania articles are 
found new maxims which embody floating ideas of 
the Revolution. The former claims for all mankind 
the " natural inherent right " of going from one State 
to another, and forming new States in vacant coun- 
tries, — an idea which we have seen suggested through 
royal favor in some early charters, ^ though not even 
here stretched so far as to claim expatriation and the 
renouncement of allegiance as a natural right of indi- 
viduals. The latter and the unique article claims 
the inherent right of the people "to assemble to- 
gether, to consult for their common good," and to 
instruct and petition the Legislature for redress of 
grievances. This "right of petition" maxim is the 
great glory of the Pennsylvania " Bill of Rights " 
which seems to have formulated it first for the fun- 
damental law of free America.^ The suicide and 
deodand clause from Penn's Charter of Privileges ^ is 
here overlooked, but revolutionary New Jersey (and 
perhaps Delaware) adopted it, and it reappeared in 
the Pennsylvania constitution of 1790. 

In the framework proper of this Pennsylvania con- 
stitution occur various other provisions of a "bill of 
rights" character, — a primary instance of the uncer- 

1 See page 25. 

2 This excellent clause, since so widely copied into American con- 
stitutions, has a germ in the English Bill of Rights (Right 5 as to 
petitioning the King). But this Pennsylvania expression gives the 
maxim its fitter and more popular scope. Yet the idea was not new 
in these colonies ; for in the Massachusetts " Body of Liberties "(1641), 
in broad, though less forcible language, appears (No. 12) an assertion 
of the right of petition. 

2 See page 13. 



36 CONSTITUTIONAL STUDIES, 

tainty in classifying such political maxims. Excessive 
bail and immoderate fines are there prohibited ; ^ 
printing-presses are declared free to examine the 
proceedings of the Legislature ; public offices of profit 
are pronounced not useful, though reasonable com- 
pensation may be allowed men called into the public 
service; entails and perpetuities are discouraged; 
penal laws are to be reformed, and punishments made 
less sanguinary and more proportionate to the crimes. 
So, too, imprisonment for debt after the debtor has 
surrendered all his property is thus early denounced ; 
and 3^et crimes not capital are to be punished by hard 
labor for the public benefit, and the public moreover 
shall be admitted to see the prisoners at work. By 
way of general homily we further find in Pennsyl- 
vania's first constitution liberality enjoined towards 
foreigners ; law and good reason required for laying 
taxes ; '-^ private liberty granted to fowl and hunt in 
seasonable times and to fish "in all beatable waters; " 
and finally the pious encouragement of virtue and 
the prevention of vice and immorality.^ 

Maryland's " Bill of Rights," once more, formulated 
early for the old thirteen States these maxims of lib- 
erty. The convention which framed the first consti- 
tution of INIaryland sat at Annapolis from August 14 
to November 11, 1776. The " Declaration of Rights " 
for that instrument, which, together witli the constitu- 
tion, passed in convention on the 14th of August, con- 
sisted of forty-tAVO articles, and covered more ground 
than Virginia and Pennsylvania had already occu- 
pied, employing its own energetic paraphrase.* All 

1 See supra, page 33. 

2 No taxation except by Parliament. English Bill of Riglits, No. 4 ; 
and see supra, page 17. 

3 Pennsylvania constitntion of 1776. Poore's Constitutions. 

* Here, too, the " right of petition" is asserted, in different language 
from that of Pennsylvania. 



REVOLUTIONARY BILLS OF RIGHTS, 37 

government, this Declaration asserted, originates of 
right from the people, "is founded in compact only," ^ 
and is instituted simply for the good of the whole. 
Sole right to their internal government is claimed for 
the people of Maryland, — a States' rights caveat^ — 
together with an inheritance of the English common 
law with its trial by jury, and all local grants derived 
under the Calvert charter. The doctrine of non- 
resistance against arbitrary oppression is denounced 
as " absurd, slavish, and destructive of the good and 
happiness of mankind." Especial confidence is re- 
posed in a legislative body as " the best security of 
liberty and the foundation of all free government. " ^ 
And besides frequently assembling, the Legislature 
should meet at some fixed place unless some special 
necessity prevents. Some vigorous idiosyncrasies 
are observable in this Maryland instrument, such 
perhaps as the headstrong Samuel Chase, a signer of 
the Declaration of Independence, might have im- 
pressed upon the convention. Levying a poll tax, 
for instance, is declared grievous and oppressive; 
paupers should not be assessed for support of the 
government, but every other person should contribute 
according to his^ctual worth. ^ The Virginian idea 
of rotation in public ofQce for executive and legisla- 
ture * is emphasized by a special argument for exempt- 
ing the judiciary, while plural offices and presents 
from foreign potentates are condemned besides. 

1 The same Idea of " compact " is suggested in New Jersey's Revo- 
lutionary constitution of July 2, 1776. 

2 Most of our later State constitutions appear, upon experience, less 
disposed to implicit confidence in this branch of government. 

* The disposition thus early to dogmatize upon taxation has char- 
acterized Maryland constitutions to this day; and come of our later 
States show an imitative tendency on this subject. 

* See Virginia Declaration of Rights, No. 5; also Pennsylvania 
ditto, No. 6. 



38 CONSTITUTIONAL STUDIES. 

Among rights not enumerated in either the Virginia 
or Pennsylvania Declaration are several which Mary- 
land must have led accordingly in proclaiming; such, 
more especially, as freedom of speech in the Legisla- 
ture,^ frequent sessions of that body, the prohibition 
of ex post facto laws, of bills of attainder, and of 
forfeiture for crime, ^ the exemption of civilians from 
martial law, and a prohibition of all monopolies and 
titles of nobility.^ 

Three contiguous States — Virginia, Pennsylvania, 
and Maryland — are thus seen setting for the Ameri- 
can Union the first example of concrete expression in 
axioms vital to civil liberty. Not perhaps that they 
originated, but that at least they first formulated in 
convention truths which these colonists held certainly 
dear when the struggle for independence began, and 
yet had never before reduced to written fundamental 
law in the name of the people. Proceeding south- 
ward, we next find North Carolina adopting a " Dec- 
laration of Rights " together with its own framework 
of government, on the 18th of December, 1776, — a 
Declaration which, though tersely and tastefully 
composed, drew its inspiration plainly from these 
earlier conventions, adding nothing original. As for 
South Carolina, impetuous and hasty, three constitu- 
tions were instituted, one after another, between 1776 
and 1790, of which the two earliest (in 1776 and 
1778) were simply framed and put forth by the Legis- 
lature, regardless of convention methods, and hence 
must have been void in any sense of fundamental 
obligation, as the judiciary of that State presently 
decided. In neither of those two enactments do we 

1 Originating in English Bill of Rights (1689), No, 9. 

2 Vaguely stated as to forfeitures. 

^ See Maryland constitution of 1776; Poore's Constitutions. 



REVOLUTIONARY BILLS OF RIGHTS. 39 

find a regular Declaration of Rights attempted, 
though that of 1778 embodied at haphazard a few 
appropriate maxims.^ Georgia, in 1777, prepared 
its own whirlwind constitution in convention; and 
this was superseded in 1789, after the Federal consti- 
tution had been ratified by the requisite number of 
States, though before it went into operation. In 
both of Georgia's constitutions are to be found a few 
salutary provisions from the early Declarations we 
have described, but no distinctive "Bill of Eights." ^ 
As for States to the northward, the fundamental 
law of New York contained no express "Bill of 
Rights," — a fact which Hamilton is seen to adduce 
in defending the corresponding omission from our 
Federal instrument. ^ New York's Revolutionary 
constitution, framed by convention in 1776, but not 
adopted until April, 1777, embodied, however, the 
Declaration of Independence, and denounced "the 
many tyrannical and oppressive usurpations of 
the King and Parliament of Great Britain;" and 
mingled with the framework of that fiery instrument 
we find some of the recitals suitable to a Bill of 
Rights. No attainder, it was proclaimed, should 
work corruption of blood ; and yet bills of attainder 
for that State were prohibited only after the pres- 
ent war should end.* New Jersey's constitution 
of 1776, secretly framed and hurriedly put forth 
almost simultaneously with our Declaration of Inde- 
pendence, uses the word "Colony," for which the 
New Jersey Legislature in 1777 substituted "State." 
Such " Bill of Rights " expressions as that instrument 

1 Poore's Constitutions, South Carolina. 

2 lb., Georgia. 

3 See Federalist, No. 84. 

* Under an attainder act of 1779, the New York Legislature ban- 
ished fifty-eight persons (three of whom were women) for adhering to 
the enemy. Poore's Constitutions, New York, 1777, notes. 



40 CONSTITUTIONAL STUDIES. 

contained originated in Penn's old charter of 1701, 
which probably had diffused its influence in colonial 
times. 1 What Bill of Rights Delaware may have 
adopted when assuming this full and formal title 
under her constitution of September, 1776, is uncer- 
tain; but an impressive article of that constitution 
forbade all importation of African slaves into the 
State. 2 For while the pulse of Revolution beat 
highest, freedom had strong headway. 

The New England colonies did not readily accept 
Southern lead in formulating individual rights ; yet the 
popular sentiment favorable to such announcements 
seems to have compelled the public leaders in most 
quarters to defer to their wishes. Connecticut and 
Rhode Island sanctioned their several charters from 
Charles II. as good and sufficient organic law for a 
sovereign State ; and the General Court of Connecti- 
cut, while legislating in 1776 to that effect, promised 
expressly not to deprive the citizen of sundry Magna 
Charta rights " unless clearly warranted by the laws 
of this State." In Massachusetts and New Hamp- 
shire the people wrought out their will much more 
effectually. Massachusetts, during this Revolution- 
ary period, was for a while governed under its 
colonial charter, adapted as might be to the emer- 
gency; but the people of the State clamored for a 
constitution, and the General Court accordingly sub- 
mitted one in 1778, which was voted down at the 
polls, chiefly because it contained no Declaration of 
Rights. The sense of the voters having been taken 

1 See Poore's Constitutions, New Jersey. 

2 The constitution, inclusive of tliis clause, was superseded later. 
See Poore's Constitutions, Delaware. Mr, Poore prints no Delaware 
"Bill of Rights;" but § 30 of the printed constitution (1776) shows 
that there must have been one. 



REVOLUTIONARY BILLS OF RIGHTS. 41 

once more in 1779, a formal State convention was 
held, whose labors produced in 1780 a new and com- 
plete charter of government; that charter was sub- 
mitted to the people, and adopted as satisfactory by 
an immense majority.^ Of this written constitution, 
never since superseded though greatly amended in 
the course of a century or more, we shall speak here- 
after concerning its practical distribution of powers ; 
but here let us observe, as to the Declaration of 
Rights which it embodied, that in more florid and 
sonorous language popular rights were proclaimed 
substantially the same that Virginia, Pennsylvania, 
and Maryland, one or another, are seen to have put 
forth nearly four years earlier. With greater insist- 
ence upon public authority and discipline, the Mas- 
sachusetts instrument employs largely the word 
"subject "in preference to "men," "freemen," or the 
"people." The preamble of this Massachusetts con- 
stitution, which was the most perfect and deliberately 
drawn of all State constitutions during our Revolu- 
tionary period, asserts that the end of all government 
is the benefit of the body politic ; and that the body 
politic is the voluntary association of individuals, — 
a " social compact by which the whole people cove- 
nants with each citizen, and each citizen with the 
whole people, that all shall be governed by certain 
laws for the common good."^ With an enlightened 

^ It is said that the Massachusetts constitution was largely the 
product and inspiration of John Adams. However this may be, as to 
an informal draft, Adams was abroad on the diplomatic service most 
of the time that this Massachusetts convention was in actual session. 

2 Poore's Constitutions, Massachusetts. See Maryland Declaration 
(§1) here amplified. The "Mayflower charter" of the Pilgrims may 
recur to memory in such a connection. 

One important, and apparently the most important, maxim of a 
"Bill of Rights" character which Massachusetts originated in this 
constitution, consists in enlarging the Virginia Declaration (§ 6) that 
one cannot be deprived of property for public uses without his consent 



42 CONSTITUTIONAL STUDIES, 

regard for public beneficence, this State constitution, 
abounding as it does in homily as well as sound doc- 
trine, commends the encouragement of literature and 
the sciences, public schools and education, agricul- 
ture, trade, commerce, manufactures, together with 
the promotion of humanity and general benevolence, 
industry and frugality, sincerity and good humor, 
"and all social affections and general sentiments, 
among the people. "^ 

New Hampshire pursued a similar experience in 
this Revolutionary era; its chosen convention submit- 
ting in 1778 a fundamental constitution which the 
people at their town meetings the next year rejected. 
Here, as under the Revolutionary constitution of 
1776 (which was a brief business-like instrument), all 
Declaration of Rights was ignored, and the people 
grew greatly dissatisfied. Finally, by 1783 a State 
constitution, modelled closely upon that of Massa- 
chusetts, was framed in convention, and in 1784 
(just after the end of the Revolutionary War) adopted 
by town meetings. With less redundancy perhaps 
of expression, the Massachusetts general truths appear 
formulated in this later State instrument. But as 
to jury trials, New Hampshire adds the cautious 
expression that none but qualified persons should 
serve, and that they should be properly paid. Next 
theorizing, in imitation of Pennsylvania upon the 
evil of sanguinary laws, this State suggests further 
that the true design of all punishments is " to reform, 
not to exterminate, mankind." And, once more, 
while discouraging pensions, the New Hampshire 
instrument quaintly suggests that economy is "a 

or that of the Legislature. To this idea the Massachusetts Declaration 
adds (§ 10), that private property applied to public uses shall always 
be upon "reasonable compensation." Cf. Constitution of United 
States, 5th amendment. 

1 Poore's Constitutions, Massachusetts. 



REVOLUTIONARY BILLS OF RIGHTS, 43 

most essential virtue in all States, especially in a 
young one."^ 

Religious liberty under these Revolutionary Bills 
of Rights may claim a passing mention. Virginia 
set forth a rule of toleration broad enough for all 
time: "Religion, or the duty which we owe to our 
Creator, and the manner of discharging it, can be 
directed only by reason and conviction, not by force 
or violence ; and therefore all men are eq:ually entitled 
to the free exercise of religion, according to the dic- 
tates of conscience ; and it is the mutual duty of all 
to practise Christian forbearance, love, and charity 
towards each other. "^ Pennsylvania's fundamental 
precept concerning religion was worthy of a State 
whose colonial history breathed the best spirit of 
philanthropy. North Carolina, too, clearly pro- 
nounced for the "unalienable right '^ to worship God 
according to the dictates of conscience. But the 
Maryland Declaration of Rights used compromising 
language on this subject, and while conceding the 
right of any and all inhabitants to worship without 
molesting others, favored religious taxation, with a 
disposition to keep the Church of England foremost. 
The Bible and the Christian religion continued, 
there and generally elsewhere, a test for civil office ; 
while Delaware, though fairly tolerating religious 
worship, required a clear profession of belief in the 
Trinity for the civil service. In general, there was 
no religious test for mere voters. 

1 Poore's Constitutions, New Hampshire. 

2 Virginia Bill of Eights (No. 16). Broad and generous as this 
expression undoubtedly was, Virginia still taxed dissenters for the sup- 
port of an English church establishment ; nor was it until after the 
general peace of 1783 that Jefferson's bill for religious freedom passed 
the Virginia Legislature against a powerful and highly intelligent op- 
position, and disestablishment became practical. 



44 CONSTITUTIONAL STUDIES. 

In a long and diffuse exposition of religious charity, 
South Carolina's constitution of 1778 held fast to 
Christian Protestantism for an established religion, 
and defined the limits of public toleration. Both of 
Georgia's constitutions (1777 and 1789) are seen to 
provide for the free exercise of religion, at the same 
time forbidding clergymen to hold political office. 
The New York constitution of 1777 was of much the 
same purport ; ^ and Virginia, New York, Delaware, 
and the Carolinas all manifested thus early that 
repugnance for clerical politicians which we see to 
this day exhibited in the fundamental law of so many 
American States. New Jersey, though avowedly 
tolerant, confined civil privileges to Protestants. 
Finally, the Massachusetts constitution, copied in this 
respect by New Hampshire, while conceding to every 
one the right to worship without molestation provided 
he does not disturb or obstruct others (a favorite 
qualification of religious freedom), enjoined the gen- 
eral right and duty to worship the Supreme Being; 
and town taxation was further sanctioned to support 
" Protestant teachers of piety, religion, and morality,'* 
at whose stated instructions attendance might be 
compelled, 2 Parish congregational churches sup- 
ported by local taxation, and a congregational clergy 
of great learning and influential in all public affairs, 
comprised the usual religious establishment of this 
era in New England; nor, indeed, did the legal 
equality of sects and a voluntary and self-supporting 
system of religion become the practice of the United 
States until this nineteenth century had run the first 
quarter of its course. 

1 Not, however, so that liberty shall become license or justify public 
disturbance. 

2 See Poore's Constitutions, passim. 



IV. 

EARLY STATE CONSTITUTIONS. 
1776-1789. 

Let us now consider the main structure of repub- 
lican government comprised in those separate State 
instruments which preceded in date our Federal con- 
stitution. First and foremost in the design is seen 
that fundamental threefold division of legislature, 
executive, and judiciary, as departments which Mon- 
tesquieu first of the modern sages announced should 
be kept distinct and separated. i This Montesquieu 
theorem appears and reappears in our American State 
constitutions, onward from the Revolutionary period : 
sometimes concisely stated as in Virginia's Bill of 
Rights, 2 and again couched in the stately and resonant 
expression of the Massachusetts constitution. ^ But 
most political dogmas are of imperfect application; 

1 ''The celebrated Montesquieu is the oracle always consulted and 
cited on this subject." Federalist, No. 47. Yet Aristotle in his " Poli- 
tics," centuries earlier, distinctly defined the three appropriate depart- 
ments of a Republic as the deliberative, executive, and judicial, — a 
description imperfect only because legislation in a representative in- 
stead of collective assembly (which is a modern contrivance) had not 
then been invented. 

2 Virginia Declaration, 1776 (No. 5) ; somewhat amplified, however, 
in the Virginia constitution. 

^ "The legislative department shall never exercise the executive 
and judicial powers, or either of them ; the executive shall never exer- 
cise the legislative and judicial powers, or either of them; the judicial 
shall never exercise the legislative and executive powers, or either of 
them ; to the end it may be a government of laws and not of men/^ 
Massachusetts Declaration of 1780 (No. 30). 



46 



CONSTITUTIONAL STUDIES. 



and the practice of American government has con- 
stantly been to so far connect and blend these sepa- 
rate departments of a republic as to enable each to 
exert a certain constitutional constraint upon the 
others, so as to unify authority. Nor, as Madison 
once suggested, does any mere parchment demarca- 
tion of constitutional limits warrant against encroach- 
ment and tyrannical concentration of power where 
the governed fail in vigilance. ^ The British consti- 
tution, admired by Montesquieu like an Iliad among 
the epics, was defective in its separation of powers 
during our colonial period, and so were the constitu- 
tions of our original thirteen States, each of whom 
had nourished colonial traditions which influenced her 
new and independent condition. 

New constitutions during this memorable war for 
independence transform thirteen dependent colonies 
into Republics. Virginia and Massachusetts charac- 
terize with dignity this new establishment as a " Com- 
monwealth;" Pennsylvania, quite ambiguously, as 
a " Commonwealth or State ; " the other ten as a 
"State." For times thus early the "convention," 
composed, like any legislature, of chosen representa- 
tives of the people, was the great and sufficient origi- 
nator and sanction of government and fundamental 
law. A de facto legislature, to be sure, would natu- 
rally summon such a convention, and even determine 
upon the basis for choosing its members ; and if that 
legislative sanction had been wanting at the outset, 
its subsequent sanction might be given afterwards to 
the convention product. Indeed, the de facto legisla- 
ture of certain revolted colonies, in 1776, that peril- 
ous year of united defiance, had gone much farther. 
It had in Connecticut (and probably too in Rhode 
Island) given the colonial charter a prolonged and 

1 Federalist, No. 48. 



EARLY STATE CONSTITUTIONS. 47 

indefinite survival ; in Massachusetts and New Hamp- 
shire it had exerted a temporary sway; in South 
Carolina it had even assumed authority to impose a 
binding constitution upon the people, — an offence 
repeated in 1778. But Virginia had set the example, 
soon universally conceded in these States, of calling a 
convention, as a fresh and immediate emanation from 
the people. Each popular constituency chose its 
own delegates, and such a convention revolutionized 
political society at its own omnipotent discretion. 

At the present day, the United States of America 
regard a constitution and convention work as a 
product properly submitted to the voters for their 
express adoption before it can become fundamental 
law. But, save for Massachusetts and New Hamp- 
shire alone, such was not the implied fundamental 
requirement of these earlier times. In those two 
States, where the referendum in this respect may be 
said to have originated for America, the voters in 
town meetings are seen discussing at the outset the 
rightful fundaments of constitutional government, 
and not only sending representatives to a State con- 
vention, but rejecting convention results which they 
deem imperfect, and procuring a new convention; 
deciding at length by their final suffrage, as a body 
politic, to ratify the later framework as sufficient and 
satisfactory to live under. Elsewhere, however, 
among those thirteen Revolutionary States that 
wrought out American independence in unison we 
find no such popular test of adoption or ratification ; 
i but under the most favorable conditions for popular 
expression what the convention once deliberately 
concludes upon becomes the fundamental scheme of 
government for that jurisdiction, the fundamental 
declaration of individual rights. When by 1787 and 



48 CONSTITUTIONAL STUDIES. 

after a treaty of peace, came further the Philadelphia 
general convention and its plan of a more perfect 
Union of these States, no popular sanction of that 
plan more direct was sought or obtained (next to that 
of the Continental Congress) than the approval of a 
State convention. In short, whether for State or 
Federal fundamental law, the convention, except as 
above stated, was throughout this Union its own self- 
sufficient sanction and exponent of that popular will 
in a community which alters, subverts, and erects 
anew. 

The absence, as a rule, of all referendum test at 
this period is further established when we look into 
these earliest of our written constitutions to ascertain 
how they could be superseded or amended. Upon 
this vital point half of these constitutions, Virginia's 
included, were silent, and yet every one of them 
became in time supplanted. This was not because 
those Revolutionary sires, illustrious in constructive 
statesmanship, who devoted their best talents to such 
work, were fatuous enough to suppose that alterations 
of fundamental law would never be needed; but 
because they reposed upon their own primary truth, 
announced repeatedly in Bills of Rights, that the 
people might amend, repeal, or substitute, at any 
time later, — namely, in convention. American 
experience, however, has taught that it is better 
for a written constitution to be explicit in such 
matters; and in some of these early constitutions, 
that course, in fact, was pursued. Thus, Pennsyl- 
vania's instrument of 1776 created a "Council of 
Censors " from the people for every seventh year, 
who should inquire into constitutional infractions 
and abuses, and upon a two-thirds vote summon at 
discretion a new convention, — a fortunate clause, 
which enabled that immense State to throw oE readily 



EARLT STATE CONSTITUTIONS. 49 

in 1790 its badly devised original sctieme of self- 
government, and substitute something more sensible. 
Georgia, too, in her constitution of 1777, directed 
the Legislature to call a new convention upon the 
petition at any time of a majority of voters in each 
county; and this provision, too, resulted by 1789 in 
a new and better framework of practical State gov- 
ernment.i Both Massachusetts and New Hampshire 
expressly accorded a probationary period to their 
slowly matured constitutions; and in consequence 
the latter State, at the end of seven years, framed in 
convention a new fundamental instrument, while the 
former continued beyond her experimental term as 
before. Some of these Revolutionary conventions — 
those of Pennsylvania, Delaware, and North Carolina, 
for instance '^ — are seen setting the example of declar- 
ing certain fundamental law irrepealable, which 
practice might suggest a discussion still deeper as to 
the inherent right of ancestors in general to bind 
their descendants and successors.^ Pennsylvania's 
constitution of 1777 expressly forbade the Legislature 
to amend or infringe, which doubtless was appropriate 
enough. 

For simple amendment to the constitution a remedy 
less drastic than calling a new convention is found 
prescribed (a remedy now universal) in several of 
these early States. Thus Maryland, in her consti- 
tution of 1776, put forward a plan of amendment, 
by which one legislature might initiate and the next 
legislature confirm a proposed alteration so as to give 

1 Georgia's constitution of 1788 was framed in one convention, and 
then ratified in 1789 by a new convention chosen quite curiously for 
the express purpose of accepting or rejecting. Poore's Constitutions, 
Georgia, note. 

2 And see supra, page 1 3. 

3 Such provisions fortunately relate for the most part to funda- 
mental rights of the individual, which deserve to remain permanent. 

4 



50 CONSTITUTIONAL STUDIES. 

it full effect,! — a favorite method of these later 
times, though with the more democratic addition that 
the amendment shall bear the final test of a submis- 
sion to the voters. 

The elective franchise under our early State consti> 
tutions was bestowed with more or less favor, ac- 
cording mainly to colonial practice and sentim'ent. 
Colomes such as Rhode Island, Connecticut, Pennsyl- 
vania, and Maryland had been treated by British 
sovereigns with marked liberality in this respect. In 
general the voter was to be a male inhabitant, 
twenty-one yeara of age or more; and "freemen" or 
"free white men" was a convenient term to employ 
thus in the written systems of States, nearly all of 
whom still recognized to some extent, in 1776, the 
colonial institution of negro slavery. " Freeholders " 
or real-estate owners, were specially designated for 
the suffrage in South Carolina, and further in 
Virgima, New York, and North Carolina, as to cer- 
tain privileged elections at least; Massachusetts, as 
under her royal charter, and Maryland, fixed a prop- 
erty qualification in either lands or personalty; while 
the most liberal of these United States, like Pennsyl- 
vania and Cxeorgia, conferred the suffrage upon all 
tax-payers. 2 Georgia, in her earliest constitution, 
made a futile effort, as some colonial legislatures 
imcl done, to punish a voter's absence from the polls 
without good excuse by imposing a penalty. Bribery 
at the polls was punishable under Pennsylvania's 
constitution, yet rather lightly. 3 

^ 1 Por certain changes, a two-thirds vote was a pre-requisite • other- 
wise a majority was sufficient. Maryland constitution (me § 59 

to JeZ t'''^''^^^''' *^"^^ ^«* ^'^y^^S taxes, had also the right 
to vote in Pennsylvania. Georgia favored mechanics. 

.n Jr.^^'^'f^"''' constitution (1784) makes conviction of bribery 
an utter disqualification from office, etc. "iiuery 

Under the Revolutionary constitution of New York, the "elector" 



EARLY STATE CONSTITUTIONS. 51 

As for the appropriate method of voting, while Mas- 
sachusetts, New Hampshire, Pemisylvania, and Geor- 
gia pronounced thus early for the written ballot, other 
States (by more or less positive expression) showed 
some adhesion still to the old English mode of an 
oral or viva voce vote.^ Indeed, the New York con- 
stitution of 1777 indicates a disposition to try the 
written ballot simply as a novel and experimental sub- 
stitute for the customary viva voce method and sub- 
ject to the final discretion of the legislature; and 
that instrument notes as a prevalent opinion " among 
divers of the good people" that voting by ballot 
" would tend more to preserve the liberty and equal 
freedom of the people" than the oral mode.^ 

The image of State government in America, with 
its threefold distribution of fundamental powers, is 
visible in the public structure of these thirteen 
colonies, developing apart for a century or more 
under the parental supervision of Great Britain. 
And accordingly, when filial ties were severed, the 
omnipotence of a local legislature and local represen- 
tatives was the fact most palpable in continental self- 
estabHshment. For the local assembly of the people 
had long been the bulwark and resource of these 
various colonies in concerting against parental oppres- 
sion; and the election of that representative assembly 
— or, in other words, of the single popular branch of 
each colonial legislature — had chiefly, and, except 
for Rhode Island and Connecticut, almost solely 
occupied the franchise and immediate attention of 

at the polls might be required to take an oath of allegiance to the 
State. Under that of Delaware, soldiers were forbidden to approach 
the polls on election day. 

1 Connecticut to some extent kept up viva voce voting in State elec- 
tions, — a system which town meetings naturally favor. 

2 Poore's Constitutions, j)assm, 1776-1784. 



52 CONSTITUTIONAL STUDIES. 

colonial voters. Thus continued it long after inde- 
pendence had been declared, in most of those 
struggling States which have set the pattern for 
this new world. But thoughtful statesmen marked 
quickly the tendency of republican governments to 
aggrandize the Legislature at the expense of all other 
departments; and the dangers of legislative abuse 
and encroachment were conspicuously manifest in 
Pennsylvania before this first stage of experimental 
self-government had run its course. The closer to 
the people nominally, the more audacious is such 
aggression apt to be. 

Since, however, a single representative house had 
borne in America the symbols of popular confidence 
and affection for so many years, we find, not strangely, 
that Pennsylvania and Georgia, as free republics, 
essayed at once the plan of a legislature which 
should consist of a single house. The experiment 
was unsatisfactory, producing speedily such public 
turbulence, discord, and caprice that by the time 
that a Congress of the United States, consisting of 
two houses, went into national operation, both 
Pennsylvania and Georgia, remodelling completely 
their State constitutions, established a corresponding 
change. As no other State but the new Vermont 
(strong admirer and copyist at the outset of Pennsyl- 
vania's first constitution) ever tried again this one- 
chambered legislature, and that trial failed, though 
with a simple rural people most favorable for such a 
system, we may fairly infer that the friction of two 
distinct and deliberative houses, is upon the whole 
highly salutary to republican government; since, 
after all, it is better to continue under defective laws 
than to change them on impulse and crude discussion. 

The larger and more popular branch of the State 
legislature came ready-made to independent America. 



EARLY STATE CONSTITUTIONS. 53 

As for a smaller branch, the joinder in authority of 
a provincial or charter council, which, like a lesser 
House of Lords, had exercised some sort of concur- 
rent authority in passing colonial laws, was readily 
made over in most of these new States, so as to serve 
as an upper and more aristocratic House, secret in its 
proceedings as formerly according to the usual prac- 
tice, and curbing the mettlesome propensity of the 
more popular branch. Massachusetts in her matured 
constitution (followed presently by New Hampshire) 
pursued a peculiar course in this respect; the old 
colonial "council," with such executive functions as 
pertained to it, was transferred to the governor, as 
an advisory appendage ; while a Senate was specially 
created, so that the Legislature might consist regu- 
larly of two co-ordinate branches each with a nega- 
tive on the other. 1 

The popular branch of the American legislature 
was made three or four times as numerous as the 
other, with members to be annually chosen on the 
representative plan.^ No such happy adjustment of 
interests could be contrived in the States for the two 
separate chambers as the Federal constitution hit 
upon later for Congress ; nobility and life tenure were 
surely unfit for what freemen disliked to style an 
upper House ; and yet with more strenuous qualifica- 
tions of age and property in its membership, longer 
terms, and in some States a remote method of choice, 
something approximating a conservative or even 
aristocratic second branch was shaped out. In Mas- 
sachusetts and New Hampshire, while annual elec- 

^ This State "council," a Massachusetts contrivance in so special 
a sense, prevails to this day in Massachusetts, New Hampshire, and 
Maine, but in no other part of the Union. See pages 16, 17. 

2 New York (1777) prescribes clearly a census to be taken every 
seven years (after the war ends) for reapportioning the popular 
branch. Cf. Pennsylvania (1776). 



54 CONSTITUTIONAL STUDIES. 

tiohs for either branch were insisted on, the Senate 
was based upon public taxation or property, and the 
House upon polls or numbers. New York's original 
Senate consisted simply of freeholders to be chosen 
by the body of freeholders. The Maryland plan, a 
singular one, seems to have foreshadowed the elec- 
toral college scheme of 1787 for choosing a President 
of the United States, so admirable in theory and yet 
so contemptible in practice ; for electors of the Mary- 
land Senate were to be chosen every fifth year by the 
general voters, with power to meet in mass at a 
stated time and place, and elect a suitable number 
of "men of the most wisdom, experience, and 
virtue," to fill that dignified branch of the Legisla- 
ture.^ Classification was an expedient at once applied 
to the State Senate in Virginia, New York, and 
Delaware, as a special means of securing for that 
body stability and experience; whence came that 
periodical rotation of a certain fraction as each legis- 
lature convenes, whose most conspicuous example is 
furnished in our United States Senate to this day.^ 
For in these earliest days of constitutional framework 
more effort was shown to create a positive basis of 
difference between the two houses of an American 
State legislature, aside from larger or smaller repre- 
sentative areas, than political philosophy takes to 
heart in this nineteenth century. 

"General Court," the legacy of colonial times, was 
the title retained in Massachusetts and New Hamp- 
shire for this bicameral legislature; ^ but "Assembly " 
was the early preference in most States out of New 
England. New York at once applied to its own 
department the modern term "Legislature," giving 

1 This Senate electoral plan lasted in Maryland until 1837. Cf. 
Poore's Constitutions. 

2 Poore, ih. ^ See page 17. 



EARLY STATE CONSTITUTIONS. 55 

the name " Assembly, " as also did New Jersey and 
Delaware, to its popular branch. "Assembly" in 
Pennsylvania and Georgia meant, however, in these 
earlier years, a one-chambered legislative body. 
"House of Representatives," as a style of the popular 
branch, South Carolina and Massachusetts made fash- 
ionable; but "House of Delegates" (no longer 
" Burgesses ") Virginia called it, seconded by Mary- 
land; "House of Commons" was the name first 
given in North Carolina. "Senate " became at once 
in leading States the favorite designation for the 
smaller and more conservative branch of the leg- 
islature; but New Jersey, Delaware, and South 
Carolina clung for a few years to the old style of 
"Councih"! 

As for the qualifications of a legislator, under 
these earliest constitutions, if a State required prop- 
erty or a freehold in order that one might vote at all, 
much more was that rule imperative for service in 
the Legislature, and most of all to the honorable 
incumbent of a State Senate. Freehold or property 
qualifications for a legislator were in these years 
waived in Pennsylvania alone. Age and length of 
residence afforded suitable tests, as they always do ; 
to which were usually superadded religious quali- 
fications, though ministers of the gospel, as we have 
seen, were in various States excluded from politics. 
Pennsylvania forbade public service in its single 
assembly for more than four years out of seven, and 
required each member to swear fidelity to the public 
interests, besides taking oath of his belief in God 
and the inspiration of the Bible. ^ 

1 See Poore, passim ; supra, page 1 7. 

2 This legislator's oath (rather an indefinite one, after all) is to the 
effect that he will not propose or assent to any hill "which shall appear 
to me injurious to the people," nor consent to any act or thing that 



56 CONSTITUTIONAL STUDIES. 

The first constitutions of Pennsylvania and New 
York severally ordained that each House should sit 
with open doors, except where the public welfare 
req^uired secrecy. And in various States we see old 
Parliamentary privileges expressly accorded: there 
should be freedom of speech in the Legislature ; and 
debates and proceedings could not be questioned else- 
where ; ^ no member could be arrested or held to trial 
while going, attending, or returning. ^ Each branch, 
moreover, should choose its own officers, determine 
its own rules, judge of the returns, elections, and 
qualifications of its members, and at its sole discre- 
tion expel any member for misbehavior. Much of 
this Parliamentary law of England had doubtless 
been recognized and asserted in the several colonies 
while owning allegiance to the King. So, too, the 
power of brief adjournment was free to each branch, 
but in general the agreement of both Houses was 
essential for any considerable or final adjournment; 
and the Executive might convene on an emergency 
or prorogue when the two Houses were unable to 
agree. Some of these State constitutions fixed the 
requisite number for a quorum. Seven States ex- 
pressly insisted that money bills should originate in 
the House, — a provision natural enough while that 
body continued in a State the only really popular 
one.^ Virginia's constitution declared that all bills 

shall tend to abridge tlieir constitutional privileges ; but that he will 
to the best of his ability conduct himself " as a faithful, honest repre- 
sentative and guardian of the people." New Jersey prescribed an oath 
somewhat similar, for preventing the repeal of constitutional provis- 
ions. See Poore, passim. 

1 Supra, page 38; and English Bill of Rights, 1689 (No. 9). 

2 See Massachusetts and New Hampshire constitutions. 

^ Thus we find the early constitutions of New Hampshire, Massa- 
chusetts, New Jersey, Delaware, Maryland, Virginia, and North Caro- 
lina expressed ; that of New York being silent. Nor can the Senate 
amend, but it must assent or reject. Virginia and North Carolina. 



EARLY STATE CONSTITUTIONS. 57 

must originate in the popular branch. Some State 
constitutions are seen entering quite minutely into 
other details of legislative practice which elsewhere 
reposed, no doubt, upon colonial or Parliamentary 
usage: as, for instance, the consent of both Houses 
should be given to a bill ; bills should be read three 
times before final passage ; yeas and nays might be 
entered on request; a journal should be kept and its 
proceedings periodically printed; and upon disagree- 
ment there should be a conference committee. South 
Carolina ordained that a bill rejected by either House 
should not be brought up again at the same session 
without special leave and notice. In New Jersey's 
constitution is traceable the first clear suggestion of 
a constraint upon legislation which in one way or 
another many constitutions of this nineteenth century 
employ, — that no law shall finally pass except by 
majorities of all elected to each branch. 

No enumeration of legislative powers was needful 
in these primitive State constitutions, inasmuch as a 
State legislature might exercise all powers over the 
domestic, social, and business relations of its inhabit- 
ants except such as were expressly delegated to the 
Union or clearly prohibited otherwise, which at this 
date of course amounted to very little; yet various 

The rule of the English House of Commons as to money bills is said 
to date back nearly to 1400. Colonial practice doubtless fortified this 
rule for America. 

Maryland's constitution made special effort to prevent the abuse of 
this " money bill " origination in the House. It forbade the House under 
any pretence to annex to or blend with a money bill other extraneous 
matter; and it defined as a " money bill " every bill assessing or apply- 
ing taxes or supplies for the support of government, or the current 
expenses of the State, or appropriating money in the treasury. No 
bill, it states, is a money bill which imposes duties or customs for the 
mere regulation of commerce, or which inflicts fines or enforces the 
execution of laws, though an incidental revenue might arise. Mary- 
land Constitution, 1776, § 11. 



58 CONSTITUTIONAL STUDIES. 

special expressions of legislative authority are found 
in these early instruments. Constraints, too, were 
stated, such as a " Bill of Rights " might specify, or 
upon entails, primogeniture, and the like encum- 
brances upon political equality. The "wages" of 
legislators, as of all civil officers, were commonly 
made payable from the State treasury; but New 
Hampshire undertook the peculiar experiment (soon 
abandoned) of making the several towns pay their 
representatives, while the State appropriated simply 
for mileage -1 

The American Executive was an inheritance from 
colonial subjection; and colonial experience fortified 
the inclination of State Revolutionary framers to 
curb and constrain its deputed functions. For more 
than twenty years previous, executive independence 
had been nearly synonymous on this American soil 
with executive tyranny. And yet, excepting the 
charter governments of Massachusetts, ^ Rhode Island, 
and Connecticut, the selection of this American chief 
magistrate, dispenser of public honors and patronage, 
had been so far removed from the immediate choice 
of the people, that the leaders of these newly fledged 
States dreaded a young democracy. 

"Governor" became at once the usual style of this 
chief magistrate, as under the colonial dispensation ; 
but Pennsylvania and Delaware in their constitu- 
tions of 1776 called him "President." As for a 

1 The first Pennsylvania constitution, though liberally devised, 
abounded in loose and precatory language, and badly planned a frame- 
work of practical government. Laws "for the encouragement of 
virtue and prevention of vice " were to be made and kept constantly 
in force. And, by way of a general check upon hasty legislation, it 
provided quite ambiguously that bills of a public nature, "except on 
occasions of sudden necessity, shall not be passed into laws until the 
next session of assembly," after they are read and printed. 

2 Before 1691. 



EARLY STATE CONSTITUTIONS. 59 

ceremonious title, Massachusetts and New Hamp- 
shire dubbed him "His Excellency;" but the other 
States kept such designations out of their funda- 
mental law, though Georgia appears to have bestowed 
the title "Honorable " in 1777, dropping it out of her 
second constitution in 1789. The term of this 
supreme executive was made annual for the most 
part. South Carolina, however, set the example of 
two years, while New York and Delaware promptly 
fixed a three years' term. 

The choice of an American governor, as a compari- 
son of these primitive constitutions will show us, 
was confided originally to the State Legislature in 
eight States out of thirteen, — a preponderance of 
opinion all the more remarkable when one recalls 
that two out of the other five, in conceding a choice 
by the people, merely suffered their own favored 
charters to work on as before. New York took up 
the singular experiment of a choice by freeholders 
alone. 1 Wherever the Legislature in the preponder- 
ating States consisted of two houses, the ballot of 
both, separate or concurrent, was made requisite; 
but Pennsylvania, with her single house, invented 
an odd method of combining the Assembly with 
an executive council on a joint ballot for chief 
magistrate. Here the supreme executive power was 
lodged not in an individual, but in a sort of Directory, 
styled "President and Council;" the people in their 
respective districts chose this "Council" of twelve 
after a scheme which rotated one-third of that num- 
ber annually ; and both President and Vice-President 
of the State had to belong to this " Council " in order 
to be eligible. The last quarter of the eighteenth 
century and the first quarter of the nineteenth com- 

1 The same favored class whose right, as we have seen, was to 
choose State senators. Supra, page 54. 



// 



60 CONSTITUTIONAL STUDIES. 

prised the era of strict "majority rule " in a republic. 
In New York alone among American States was a 
plurality choice (here by the freeholders) sanctioned 
thus early ; while, on the other hand, both in Massa- 
chusetts and New Hampshire,^ the voters, by failing 
at the polls on one trial to give some candidate for 
governor the clear majority, threw the election con- 
sequently into the Legislature, which body would 
then proceed, after a prescribed mode, to elect at 
discretion from among the highest candidates. ^ The 
convenience of concluding the choice, once and for 
all, in favor of the person whose number at the polls 
was greatest, whether he had received an actual 
majority of the votes or not, fructified but slowly in 
State fundamental law, and that, too, after a rigorous 
experience. 

As for qualifications, our American Executive was 
at the outset required by the majority of States to be 
a freeholder to a considerable amount.^ But the 
earliest instruments of Virginia, Pennsylvania, New 
Jersey, and Delaware, were silent in this respect. 
"A wise and discreet freeholder," enjoins the New 
York constitution; "some fit person within the 
State," says that of New Jersey; "a person of wis- 
dom, experience, and virtue " is the language of 
Maryland. Ripeness of age (as, for instance, twenty- 

1 Semble in Connecticut and Rhode Island, too, under charter rules. 

2 This eventual choice of Chief Executive by the Legislature, on 
failure of a popular majority, continues a feature of the Federal con- 
stitution, though almost obsolete as concerns State practice. See post, 
Part II. As for members of the Legislature at this period (and for 
Congressmen still later) if no one received a majority of the votes for 
representative, the contest at the polls was repeated until a majority 
was reached. 

8 This freehold qualification of £1000 under the Massachusetts 
constitution of 1780 was abolished but a few years ago, and at the 
instance of Governor William E. Russell. The requirement had long 
escaped public notice. 



EARLY STATE CONSTITUTIONS. 61 

five years) was quite commonly prescribed ; so, too, 
residence within the State for a certain length of 
time; and finally the Protestant faith in religion. 
Restrictions upon re-election were a favorite precau- 
tion in most States to the southward.^ 

A Lieutenant-Governor (in Pennsylvania a Vice- 
President) was provided under various constitutions, 
agreeably to colonial practice, while six States ignored 
such an office.^ The incumbent served as executive 
head of the State for great emergencies. In New 
York he was designated to preside over the State 
Senate, giving his casting vote in case of a tie, but 
otherwise not voting. Georgia, on the other hand, 
named the President of the Council as next in suc- 
cession to the Governor; and so too did Delaware. 
This " Council " (styled sometimes a " Privy Council, " 
or "Council of State") began in 1776 as a great 
encumbrance upon executive independence, blending 
in many instances the legislative functions of an upper 
house. Tacked upon the chief magistracy, this 
Council would give its "advice and consent" to the 
most important executive acts; while in Pennsyl- 
vania it formed as a pure Directory a constituent 
part of the Executive itself. In the President and 
Directors of a private corporation to this day we 
trace the semblance of a common charter origin. 
Members of this Council were elected in various 
ways at State discretion; in Massachusetts and New 

1 One was re-ineligible to the office, e. g., for four years after serv- 
ing three in succession. See constitutions of Delaware, Maryland, 
Virginia, North Carolina, and South Carolina. 

2 Massachusetts, New York, New Jersey, Pennsylvania, and South 
Carolina established such an office by fundamental law ; the Lieuten- 
ant-Governor in the first-named State holding the second official rank 
with the ceremonious title of " His Honor." No such office was recog- 
nized in New Hampshire, Delaware, Maryland, Virginia, North CarO' 
lina, or Georgia. 



62 CONSTITUTIONAL STUDIES. 

Hampshire, for instance, the people annually chose 
Senators and Councillors together, and then the 
Senate thus composed would select the Councillors;^ 
but unless Pennsylvania be thought an exception to 
the early American rule,^ there was as yet no truly 
direct choice of Councillors by the people. The idea 
of an executive " Council " is ere this nearly exploded 
in the United States; but, considering the regular 
State practice in 1787, our Federal constitution must 
have had a narrow, as well as fortunate escape, from 
a Cabinet capable of tying up our President's hands, 
unless, as appears most likely, the States themselves 
had concluded to turn their own councils into sen- 
ates, with powers more purely legislative than before.^ 
The absorption of executive powers by the legisla- 
tive department was very great in these times, as we 
have already seen, and the Governor had little of 
either personal independence or patronage, save, 
perhaps, as commander-in-chief in some military 
emergency. Even the dignity of a council detracted 
from his authority. Nevertheless, he might con- 
vene and adjourn the Legislature, — not arbitrarily, 
as in 1775, but to much the same extent as defined 
and copied later in the Federal constitution for a 
President of the United States. He had no absolute 
veto,* such as provincial governors had exercised, 
and generally the States were at present indisposed 
to grant him a veto power at all ; but Massachusetts 

1 Here, as already shown, the Council was purely an executive 
appendage. 

2 Supra, page 59. 

^ Massachusetts, Maine, and New Hampshire are seen to furnish to 
modern America the only real instance of executive "Privy Coun- 
cils ; " and councillors, moreover, are now chosen in these States di- 
rectly by the people. Pennsylvania and Georgia dropped the *' Council " 
out of their new constitutions of 1789-90. 

* South Carolina's hasty and temporary instrument of 1776 con- 
ferred such power. 



EARLY STATE CONSTITUTIONS. 63 

by 1780 set the precedent for our Federal constitu- 
tion and future State practice by conferring a quali- 
fied veto which the Legislature by a two-thirds vote 
might override. 1 The Governor had usually the 
pardoning power, subject perhaps to the advice of his 
Council, and with some stated exceptions. ^ He sent 
messages and recommendations to the Legislature.^ 
Usually with consent of his Council he appointed 
the lesser State officials ; but New York, unduly fear- 
ful of the one-man power, vested all such public 
patronage in a "Council of Appointment," or Direc- 
tory, where the Governor, as a single individual, 
might be outvoted.* Indeed, for such high officers 
as Secretary or Treasurer (for judges, too, as we 
shall see presently) and often in military appoint- 
ments, the Legislature kept sedulously the selection 
to itself, as the true representative of the people; 
not unfrequently adding such small county appoint- 
ments as were not left to the local voters.^ Massa- 
chusetts and New Hampshire, on the other hand, 
allowed the Governor a considerable patronage, sub- 
ject, however, to "the advice and consent of the 
Council," which, if comprising any year a majority 
of political opponents, might of course obstruct his 
wishes. As commander-in-chief of the army and 

1 The qualified veto was given by the constitution of New York to 
a special " Council of Eevision," or a directory, which consisted of the 
Governor, the Chancellor, and the judges of the highest court. 

'^ Except for impeachments, Massachusetts and New Hampshire. 
No pardon before conviction. New Hampshire, New York. In treason 
and murder he may reprieve and then report to Legislature. New York. 

3 New York, 1777. 

* See New York constitution (1777) as defined in 1801. Pennsyl- 
vania's constitution of 1776 vested the public patronage in its directory 
of President and Council. 

5 In Maryland the Legislature was to choose one Treasurer for the 
eastern shore and another for the western. No Treasurer can sit in the 
Legislature until he has settled his accounts. North Carolina. 



64 CONSTITUTIONAL STUDIES. 

navy and of all the military forces of the State 
"by sea or land," the Governor had various powers 
thus early which were enumerated with much pomp- 
ous phraseology; he was authorized to embody the 
militia and direct it when embodied; he might 
assemble and conduct such forces in martial array, 
"encounter, repel, and resist" the enemy by sea or 
land; "kill, slay, or destroy if necessary, and con- 
quer." ^ The forts and garrisons of the State were 
subject to his supervision, and he might lay temporary 
embargoes or prohibit exportation ; but his power to 
commence war or conclude peace was kept subordi- 
nate to the will of the Legislature. ^ In fine, the 
Governor was to " take care that the laws were faith- 
fully executed ; " ^ and to exercise all other executive 
powers of government, limited and restrained by the 
laws of the State.* 

The Judiciary was recognized in the old thirteen 
States as an important bulwark of free government; 
though the scope of its remarkable power in subject- 
ing acts of legislation to the written constitution had 
yet to be tested. But how to appoint the judges of 
a free republic was an instant and difficult problem. 
In general, the local Legislature claimed at once the 

1 This quaint language, still unchanged in the Massachusetts con- 
stitution, originates in the expression of the old royal charters, as far 
back even as that of Virginia in 1609. But under the Pennsylvania 
constitution (1776) the Governor could not take personal command 
without approval of the Council. 

2 Much of this authority (especially as to commercial powers and a 
navy) was practically superseded when our Federal constitution went 
into operation in 1789. 

3 See New York constitution of 1777. Money (as voted by the 
Legislature) was to be drawn from the treasury on his warrant. Mas- 
sachusetts, New Hampshire, North Carolina. But no money could be 
drawn from the treasury without legislative assent. South Carolina, 
1778. 

4 North Carolina, 1776. 



EARLY STATE CONSTITUTIONS. 65 

right to participate at least in so precious a selection. 
Six out of thirteen States conceded the choice accord- 
ingly without reserve;^ Georgia set a dubious rule 
which developed into a peculiar selection by these 
representatives of the people ;2 Delaware united 
Executive and Legislature in the choice. Maryland, 
Massachusetts, and New Hampshire alone permitted 
the Governor to appoint the judges with consent of 
Council ; a special Directory, or " Council of Appoint- 
ment," absorbed such functions in New York; and 
lastly in Pennsylvania (if permitted by the Legisla- 
ture), that general Directory of "President and 
Council."^ The English rule of stable and perma- 
nent tenure had usually been in high favor among 
these colonies ; hence good behavior was the judicial 
term originally adopted by a majority of States.* 
" Ability rather than wealth " being always a maxim 
of the legal profession, property qualifications for 
this judicial station were dispensed with.^ But the 
less dignified justices of the peace who monopolized 
more than they do now the petty jurisdiction of local 
magistrate, were vested usually with a moderate 
term of office.^ Courts were left commonly to ap- 

1 New Jersey, Virginia, North Carolina, South Carolina ; as also 
Rhode Island and Connecticut under charter practice. 

2 See constitution of 1789, under which the House chose three can- 
didates, one of whom the Senate finally selected. 

3 Pennsylvania's constitution of 1776, ambiguously drawn, seems to 
have given the Assembly much latitude in drawing all such patronage 
to itself. 

4 But New Jersey and Pennsylvania preferred a terra fixed at seven 
years for the highest tribunal, with a right of reappointment. New 
York already prescribed a limit when the incumbent reached sixty 
years of age. Georgia, a State which long disfavored a regular judi- 
ciary as compared with business referees, or " courts merchant," set a 
three-years limit, 

s " Fixed and adequate," " moderate," etc., salaries were sometimes 
enjoined; as in Virginia, 1776. 

6 Three, five, or seven years was the usual prescribed limit; the 

5 



6& CONSTITUTIONAL STUDIES. 

point their own clerks, and in some States the district 
attorneys, marshals, and sheriffs besides. All such 
court officials, and even the Attorney-General (where 
such a State officer was recognized at all), enjoyed a 
safe and stable tenure in these days. 

Colonial usage would determine largely in each 
free State the scope of the judicial establishment. 
Outside of New England, separate equity powers as 
distinct from the common law had considerable 
range, and sometimes the Governor, though more 
fitly a Chancellor, conducted that branch of jurisdic- 
tion. The sudden stoppage in 1776 of judicial ap- 
peals to King and Council caused much perplexity. 
Maryland's constitution set the prompt example of a 
specific Court of Appeals by way of substitute, for all 
cases whether in common law, chancery, or admiralty; 
but in most other State constitutions of this era we 
perceive bewilderment, confusion, and a disposition 
to mix Executive and Judiciary together for a last 
resort, somev/hat as before. New York for both law 
and equity set up a Court of Errors which (to copy a 
British House of Lords) consisted of the Senators, 
the Chancellor, and the Supreme Court Judges; in 
New Jersey, Delaware, and one or two other States, 
the Governor and Council constituted a final tribunal ; 
Georgia, with her bald judicial system, comprising a 
superior but no supreme court, left appellate powers 
by 1789 to the Legislature. The constitutions of 
Virginia, Pennsylvania, and North Carolina con- 
tained nothing very explicit.^ Massachusetts and 
New Hampshire, while trusting the Legislature for 

Massachusetts constitution reciting as a reason, " that the people may 
not suffer" from the long continuance of incumbents who fail in fidel- 
ity or ability. In a fcAY States only the tenure of such magistrates was 
good behavior, 

1 Pennsylvania's constitution gave certain chancery powers to the 
common-law courts. 



EARLY STATE CONSTITUTIONS. 67 

a permanent system, left probate appeals and matri- 
monial matters temporarily with the Governor and 
Council. We may further observe here that in 
Massachusetts the Governor or Legislature might 
require the solemn opinion of the justices of the 
Supreme Court, — an expedient for times of per- 
plexity which some other States have since adopted. 
Judges in Massachusetts and New Hampshire were 
removable by the Governor (with consent of Council) 
on address of the two houses, — a summary means 
for disposing of men upon the bench personally and 
politically obnoxious;^ but in Maryland, a judge 
could be removed only for misbehavior on conviction 
in a court of law. All officers of the State, includ- 
ing those of judicial station, might be impeached, as 
various constitutions prescribed, and expelled accord- 
ingly; the House of Representatives constituting 
the body of grand inquest and prosecution, while the 
Senate or Council (or some such mixed tribunal as 
the New York Court of Errors ^ might afford) tried 
and determined the cause, and gave sentence upon 
conviction. 3 

As for miscellaneous provisions of these early con- 
stitutions worth mentioning, the Legislature was 
empowered in some States not only to impeach, as 
above, or to expel its own members in either house, 
but also to punish persons who were not members for 

1 " Shall be removed." South Carolina. Removable by the Legis- 
lature for misbehavior. Pennsylvania. 

2 Supra, page 66, And see South Carolina, 1778. 

^ In Pennsylvania one might be impeached either while in office or 
after his resignation or removal, and the President and Council tried 
the case. Persons when out of office might also be impeached in Vir- 
ginia; and here the trial of impeachments was left undefined, but 
" forever disabled " from holding office was made a suitable penalty 
Banishment was a permitted penalty in Maryland. 



68 CONSTITUTIONAL STUDIES. 

disorderly or contemptuous behavior, by an imprison- 
ment of not more than thirty days.^ Oaths for mem- 
bers of the Legislature and for officials were plentiful 
in several of these instruments, the framers thus 
founding a prosecution for perjury as well as more 
direct criminal proceedings against the offender. 
There was the oath of allegiance to be taken, which 
abjured Great Britain and acknowledged the State 
as "free, sovereign, and independent;" the oath to 
faithfully serve as officer or representative ; the oath 
of religious belief which conformed to Christian tests ; 
and the oath of owning the requisite property. ^ 

Jealousy of an office-holding class was manifest 
beyond the " Bill of Rights" denouncement of inherited 
station. 2 Constitutional provisions are seen in a 
majority of States against a plurality of public offices, 
or the holding of more than one lucrative office at a 
time. Judges, sheriffs, and registers were in various 
States expressly forbidden to sit in the Legislature ; 
so also were delegates and others in the Continental 
service, military officers, and army or navy contract- 
ors ; * and ministers of the gospel, as already stated, 
were placed under a special ban in various States, so 
far as political station was concerned, while Massa- 
chusetts applied secular exclusion rather to all in- 
structors at Harvard College.^ 

"^ Maryland, Massachusetts, and New Hampshire. 

2 Maryland and Pennsylvania prescribed under penalty various 
special oaths ; as, for instance (in the former State), not to participate 
in the profits of office or of any public contracts; to vote impartially 
and for the public welfare, without having promised one's vote, etc. 

3 Supra, page 32. 

* Delaware and North Carolina. 

5 The South Carolina instrument of 1778 forbade the father or 
brother of the Governor for the time being to sit in the Council. 

Upon office-holding generally, the constitution of Pennsylvania 
(1776) observes that, as every freeman, to preserve his independence, 
ought to have some profession, calling, trade, or farm for his honest 



EARLY STATE CONSTITUTIONS. 69 

The Pennsylvania instrument of 1776 — odd and 
rather fanciful, as we have seen, in its scheme of 
popular government, though framed by a convention 
over which the great Franklin presides — was much 
given to homily and didactic exposition ; and so, too, 
was that of Massachusetts. Greatly as the two com- 
monwealths differed on the question of religious 
polity at this date, they were alike in announcing a 
broad scheme of secular instruction such as might 
place self-government securely upon the sound basis 
of public intelligence and virtue. Massachusetts, 
peculiarly proud of her Harvard College as the crown 
and capstone of a liberal education, confirmed that 
institution in all its franchises, lands, and endow- 
ments, and gave it at once a State association by 
placing the chief dignitaries of the Commonwealth ex 
officio upon its board of government, — a connection 
which lasted far into the nineteenth century. Public 
and grammar schools in the various towns were 
generously fostered besides by the fundamental law 
of Massachusetts; and protection was promised to 
private and public institutions, with rewards and 
immunities for the arts and sciences.^ Pennsylvania, 
too, exhorted her Legislature to encourage one or 
more universities of useful learning, and to establish 
schools in each county for the convenient instruction 
of children, with such public salaries to the mas- 
ters "as may enable them to instruct youth at low 
prices." 2 

subsistence, "there can be no necessity for, nor use in, establishing 
offices of profit, the usual effects of which are dependence and servility 
unbecoming freemen." But whoever is called into public service to 
the prejudice of his private affairs, " has a right to a reasonable com- 
pensation ; " and whenever an office becomes so profitable that many 
compete for it, the Legislature ought to lessen its profits. 

1 Massachusetts, 1780. 

2 Pennsylvania, 1776. 



PART II. 
THE FEDERAL UNIOIT. 

I. 

EARLY TENDENCIES TO UNION. 
1609-1764. 

Next to the voyage of Columbus and the disclosure 
of a New World to civilized Europe, the most preg- 
nant event for the advancement of this western 
hemisphere, in the North American portion at least, 
was the planting of thirteen English colonies, adja- 
cent to one another, on our northern Atlantic coast. 
That grand origination of law-loving liberty occupied 
most of the seventeenth and eighteenth centuries; 
and had England, the mother country, ruled her 
offspring ever so kindly, independence and imion 
must sooner or later have resulted. Most fortunate 
was it for America that Europe had gained since 
1492 more than a hundred years' headway in liberal 
ideas before this British transplantation commenced ; 
nor can we deem it inauspicious for the coming age 
that the thirteen settlements, chaotic to some extent 
in population, yet overwhelmingly British, should, 
with all their zeal for reformed Christianity and all 
their inborn love of freedom, have originated apart 
and developed striking differences of tastes and habits 
of life in their several colonial confines. 

E plurihus unum — the "one from many " — is a 
clear epitome, forever historical, stated in the most 
concise phrase possible, of the origin and structure of 



EARLY TENDENCIES TO UNION 71 

the present United States of America. The E jpluri- 
bus fundamentals have already been discussed; and 
unum now demands our continuous attention. The 
immense predominance of the Anglo-Saxon element 
from the very start in these American settlements 
guaranteed to the soil a people bound by those endur- 
ing ligaments of a common history, a common lan- 
guage and literature, common political institutions, 
and a common jurisprudence. Whatever might have 
been their differences in colonial origin and affilia- 
tions, they were unified in loyalty to a common line 
of sovereigns, whose policy, however differing with 
individual rulers, embraced essentially one conti- 
nental scheme for all. There were traits, moreover, 
in their common isolation from the old world which 
naturally induced contiguous colonies to enter into 
mutual leagues and compacts. Arms and succor had 
to be provided against the Indians, their common foe, 
where philanthropy could not pacify; reciprocal trade 
and commerce needed occasional adjustment, as did 
also the reciprocal right to settle, purchase lands, 
and inherit, and the extradition of criminals; and 
the old royal grants were soon seen to have defined 
colonial boundaries with so little precision that 
whenever the time should come to push American 
settlement westward into the Mississippi valley, the 
conflicting claims of our earlier jurisdictions must 
needs have merged for the good of the whole people 
in a common territory with a common pre-emption 
from the red tribes, and a common and comprehen- 
sive policy to pursue towards all the frontier foes of 
American progress. For behind these untamed chil- 
dren of nature, the aboriginal occupants of the 
American wilderness, stood France and Spain. Still 
more instant for adjustment between particular colo- 
nies were Atlantic problems of coast and harbor 



72 CONSTITUTIONAL STUDIES. 

jurisdiction, and disputes among adjacent colonies 
over the use of such navigable waters as the Con- 
necticut, Delaware, and Potomac rivers, and the 
New York, Delaware, and Chesapeake bays. King 
and Parliament might arbitrate such disputes for the 
first century or two of rapid growth and expansion; 
but the time was sure to come, not many generations 
distant, when a government remote beyond the seas 
and monarchical would prove incompetent for a task 
so immense that Union with home rule could alone 
achieve it. 

That these tendencies to Union existed early in 
the American colonies, Avithout any clear conscious- 
ness of disloyalty or forecast of a coming separation 
from the mother country, appears from various 
leagues or compacts of the colonial era, chief and 
earliest among which should be mentioned that of the 
''New England Confederacy." Massachusetts, Ply- 
mouth, Connecticut, and New Haven, colonies singu- 
larly homogeneous in origin and character, formed 
in May, 1643, what they styled a "perpetual con- 
federation," — "a firm and perpetual league" for 
themselves and posterity under the name of the 
"United Colonies of New England." The "sad 
distractions " of civil war in the mother country, 
which drove these neighboring colonies to their own 
resources for mutual succor and advice, furnished the 
ostensible and perhaps a sufficient motive for so dar- 
ing an assumption of sovereignty and self-govern- 
ment. This instrument of sectional Union disclosed 
religious as well as political designs; for which 
reason it happened, most probably, that Rhode 
Island, whose free religious tenets found little favor, 
was refused admission. Mutual offence and defence 
against native tribes and the Dutch were here sought 



EARLY TENDENCIES TO UNION. 73 

most of all; and under the united auspices of this 
league the colonies who made the name " New Eng- 
land " lastingly native, fought together unaided the 
Pequod and King Philip wars. Mutual reception 
of settlers and the mutual extradition of "servants " ^ 
and of fugitives from justice were other objects of 
the alliance distinctly provided for. 

This New England Confederacy, jealously exclusive 
and sectional in character, and stipulating expressly 
that without a unanimous assent no other colony 
should share its benefits,/respected scrupulously the 
autonomy of each sovereign member of the Union 
and all reserved rights. Its management of confeder- 
ate affairs was in the nature of a joint representative 
board, or committee. Eight commissioners compris- 
ing the board, with an equality of representation, ^ 
and chosen two each from the several colonies, were 
to manage the common concerns, meeting once a year 
by rotation in Boston, Hartford, New Haven, and 
Plymouth, and on extraordinary occasion at con- 
venience. Six out of eight might determine the 
common business, " not intermeddling with the gov- 
ernment of any of the jurisdictions;" and if six 
commissioners could not agree, the subject was to be 
referred to the four colonial legislatures for conclu- 
sion. No provision was made for amending these 
Articles of Confederation ; but for any infraction of 
the league, commissioners of the other unoffending 
jurisdictions should consider and order for the peace- 
ful preservation of this Union inviolate. The charge 
of all just wars offensive or defensive was to be 
borne by a poll or census enumeration, each colony 
rating for itself ; and all booty or conquered territory 
was to be ratably divided. Any of these confederated 

1 Cf . Constitution of United States, Art. IV. § 2. 

2 Two from each colony, and " all in church fellowship with us." 



74 CONSTITUTIONAL STUDIES. 

colonies "invaded by any enemy whatsoever" was 
to call upon the others for assistance.^ 

Boards of commissioners, mutually chosen on the 
principle of co-ordinate sovereignty, were found in 
various other instances a convenient mode of nego- 
tiating differences among the colonies or planning 
concerted action. Thus did the navigation of the 
Chesapeake and Potomac waters engage Maryland 
and Virginia from time to time; and disputed 
boundary rights were elsewhere a cause of irritat- 
ing collision, demanding a mutual conference for 
adjustment. 

After the New England Confederacy had finally 
disappeared, various plans were proposed for a more 
comprehensive union of all the British colonies in 
North America, which might insure unanimity of 
action, more especially against the French and 
Indian allies who menaced their general safety. One 
such plan was considered at London by the Board of 
Trade, but the peace of Ryswick caused it to be for- 

1 See Bowen's "Documents of the Constitution," 79, for these 
" Articles of Confederation." This was indeed a daring document for 
recognized subjects of the British Crown to frame and carry into effect 
without a submission, so far as appears, to the home government or ' 
the procurement of home authority. Some writers have thought that 
these New England colonists intended a sectional rebellion ; but we 
need not strain the natural purport of the league, which (though styled 
" perpetual ") aimed to provide for immediate needs while Great Britain 
was absorbed in her own struggle for existence. These New England 
settlers inclined strongly from the first to resolve all political doubts of 
authority in their own favor ; and there were contingencies certainly, 
in the English civil war and under Cromwell's usurpation, which might 
have wrought out a premature colonial independence in America prior 
to a continental union. To take such contingencies into account was 
neither rebellion nor disloyalty. This New England Confederation 
kept its vigor and efficacy for some forty years, and until after the 
accession of Charles II. ; and Hutchinson says that it received Eng- 
lish countenance and acknowledgment from its beginning until the 
Restoration. 



EARLY TENDENCIES TO UNION 75 

gotten. Half a century later, under the new pressure 
of French and Indian hostilities which threatened to 
expel British influence from the continent, came two 
significant tokens of confederate union (1) in the 
assembling of a Convention (or Congress) of colonial 
delegates at Albany in 1754, and (2) in the adoption 
and proposal by that convention of a plan of union 
which Benjamin Franklin, as a leading delegate, had 
drafted.^ Seven colonies north of the Potomac were 
here represented, the Board of Trade having sum- 
moned the convention in view of impending war; 
and being thus assembled, the delegates, in addition 
to the Indian treaty business which was the main 
concern, discussed the weightier subject of union and 
Confederation for the general interests of these North 
American colonies in peace as well as war. Among 
other plans accordingly presented, Franklin's was 
preferred, and after a protracted debate adopted 
either unanimously, or with the dissent of a single 
State. But outside of the convention this plan met 
but little favor. It was rejected presently by all the 
colonial assemblies which considered it at all, while 
the Board of Trade declined even to recommend it 
to the King's notice. As Franklin says, "The 
assemblies all thought there was too much prerogative 
in it, and in England it was thought to have too 
much of the democratic." Indeed, the obvious effort 
of this instrument to please all parties, and to recon- 
cile dutiful allegiance with home rule, produced its 
natural result. 

In Franklin's plan of 1754, as supplied from his 
posthumous papers, the various items of proposed 
government are set forth with annotated reasons and 

1 As Postmaster-General of these colonies by appointment of the 
British Crown, Dr. Franklin had ample opportunity to consider later 
the advantage of a closer system of continental union. 



76 CONSTITUTIONAL STUDIES. 

motives for each of them. Its preamble, in choice 
and deferential language, proposed petitioning for an 
Act of Parliament which might establish one general 
government for these American colonies, under a 
reservation that each colony should retain its existing 
constitution except in the particulars set forth. The 
scheme proper is styled, " Plan of Union of the British 
American Colonies ; " thus discreetly avoiding any 
style savoring of independence, such as the New 
England Confederacy had employed, or claiming to 
last as perpetual. A Grand Council was created, 
after the familiar pattern of a Board of Commis- 
sioners, but with this new step in advance, sure to 
provoke resistance, that colonies were not to be 
coequal in composing it; council representation, in 
other words, being based upon a sort of money 
apportionment, which proposed taking always into 
account the relative contributions of the thirteen 
colonies to the general treasury, and under its 
preliminary schedule placed Massachusetts, Virginia, 
and Pennsylvania distinctly foremost. Such par- 
tiality must have provoked the jealousy of smaller 
States, while on the other hand compromising theo- 
retically the sound democratic doctrine of apportion- 
ing by numbers. Then, as if to disconcert the 
representative authority of these colonies, a Presi- 
dent-General, made after the image of the familiar 
provincial governor, was to be appointed by the 
Crown to carry into execution with very ample dis- 
cretionary powers the acts of the Grand Council. 
Without his assent their representative decrees were 
to be of no avail whatever. Indian peace or war, 
and Indian treaties, this President- General might 
determine with the advice of the Grand Council; 
while as concerned appointments, he was to nominate 
all military officers to them, and they were to nomi- 



EABLT TENDENCIES TO UNION. 11 

nate all civil officers to him. This common govern- 
ment of the colonies was to raise soldiers, build forts, 
and equip vessels to guard the coast and protect 
commerce; and for the purposes delegated it was 
to levy duties, imports, or taxes at convenience, and 
appoint a general Treasurer. One pregnant power 
was that of purchasing lands from the Indians and 
regulating and governing new settlements in the pur- 
chased territory until the Crown should see fit to 
form them into particular governments. For, as Dr. 
Franklin argued, a single purchaser, in the name 
of the Crown or the Union, and a single authority 
for developing new colonies, was preferable to many. 
No money should issue, however, but by joint 
order of the President-General and Grand Coun- 
cil; and (as in most of the individual colonies) all 
laws passed by their concurrence were to be trans- 
mitted to the King in council, subject to his approval 
or disapproval.^ 

On the whole, this Franklin plan of continental 
union, though a sagacious emanation for the times, 
projected too difficult a political experiment, in 
harnessing so closely King and colonies, prerogative 
and people, for a general direction of affairs which 
each must have felt better competent to under- 
take alone, — an experiment which, proposing co- 
operation, was more likely to end in distraction. 
That spirit, too, of self-sacrifice and subordination, 
which so many equal jurisdictions would have to in- 
voke when delegating authority for the sake of union, 
needed some clearer incentive. The conclusion of 
the colonists was wise, therefore, to wait for some 
more solemn exigency, when union and home govern- 
ment might more readily coincide. Yet the scheme 

1 See Bowen's Documents, 87, for " Franklin's Plan." 



78 CONSTITUTIONAL STUDIES. 

proposed by America's most distinguished son and 
statesman of that early day, and the discussion over 
its adoption, undoubtedly prepared the minds of 
American colonists for the genuine continental union 
which took definite shape a generation later. 



II. 

INDEPENDENCE AND REVOLUTION. 
1765-1780. 

During the first sixty years of the eighteenth cen- 
tury these transatlantic colonies maintained peace- 
ful relations with the mother country, joining as loyal 
sons of Great Britain in the prosecution of the French 
and Indian War, and rejoicing over the crowning 
conquest of Quebec as their common glory. As 
Burke observed in 1775, America owed little to any 
eare by Great Britain, but had gained "through a 
wise and salutary neglect." But there had been early 
causes for discontent in particular colonies; and 
when Parliament, with arbitrary pride, undertook to 
lay the burden of taxation for that war upon the 
colonists, — asserting what a minority so aptly styled 
"the right to shear the wolf," — colonial resistance 
became universal. This French expulsion from the 
northwestern frontier had strongly developed both 
the martial hardihood and the co-operative inclination 
of our colonists; and a dispute, formerly languid, 
touching the legal status of their several colonial 
assemblies, and the abstract right of Parliament to 
levy taxes in America without the assent of local 
representatives, blazed at once into a continental 
issue vital to colonial liberty itself. 

The colonial Stamp Act, which passed the British 
Parliament in 1763, gave America the first rude 
alarm ; the tax itself being slight enough, to be sure, 



80 CONSTITUTIONAL STUDIES. 

but the principle of levying it most obnoxious, and 
the precedent one which might foster other distant 
impositions. United protest and resistance, almost 
spontaneous, resulted. As co-ordinate colonies had 
sent delegates to a convention in 1754 on the King's 
summons, so now they summoned a convention of 
their own, which met in New York City in October, 
1765. This was the assembly historically known as 
the " Stamp Act Congress ; " and so ominous was the 
spectacle of such a body that Parliament and the 
Crown receded a short while from the new endeavor, 
and early the next year this Stamp Act was repealed. 
But Parliament still claimed the unqualified para- 
mount right to legislate for the colonies on all sub- 
jects whatsoever; and under the influence of the 
stubborn George III. the policy of arbitrary taxation 
for the colonies was resumed in a new mode, and 
with vexatious accompaniments for humbling Massa- 
chusetts, whose rebellious temper, fomented by 
earlier differences, singled her out for discipline. 
Our thirteen colonies resolved unitedly that the 
oppression of one jurisdiction should be deemed the 
oppression of all; and a Continental Congress was 
once more convoked; this time, as events compelled, 
to become the prime agent of unified revolution and 
of a new unified confederacy. At Philadelphia met 
the first Continental Congress, September 17, 1774, 
followed by the second in May, 1775, after bloodshed 
had begun. Events forced what might have been 
otherwise a temporary assembly into a permanent 
one. In this second Congress a commander-in-chief 
was appointed for all the colonies, continental troops 
were enrolled, and quotas of men and money were 
assigned. At the third Congress of 1776, with 
delegates chosen for the year as before from the 
several colonies, the war for independence swept like 



INDEPENDENCE AND REVOLUTION. 81 

a torrent all scrupulous sense of allegiance, and on 
the 4th of July of that year the immortal Declara- 
tion went forth to the world. 

This great body of the American people had taken 
up arms not to vindicate abstract rights, but to 
redress practical wrongs; and revolution and inde- 
pendence came to them, in the main, as the logical 
and unpremeditated result of a hostile domestic 
resistance. For after a resort to the arbitrament of 
violence, victory can seldom rest with wiping out the 
temporary wrong, leaving the opportunity as before 
to inflict new ones.^ In reading over this Declara- 
tion of Independence, with its earnest indictment of 
grievances against Great Britain, one perceives that 
the whole denunciation was concentrated upon the 
King in person, while Parliament received but an 
indirect and contemptuous allusion. The "self- 
evident" truths which this instrument asserted by 
way of preface are long since familiar to Americans 
as household words, and doubly cherished as among 
the fundamental rights of each new State constitu- 
tion. And one should observe, moreover, that this 
"Declaration of Independence" recognized thus 
primarily the composite nature of the political system 
into which henceforth the old colonies were to be 
welded; for its solemn announcement to the world is 
not that these several colonies, but that "these 
United Colonies " are, and of right ought to be, "free 
and independent States ; " and independence is here 
published and declared by "the Representatives of 
the United States of America, in General Congress 
assembled," and expressed "in the name and by the 
authority of the good people of these Colonies."^ 

1 Cf . 7 Jefferson's Works, 74. 

2 Cf. Instrument, Bowen's Documents, 102. 

6 



82 CONSTITUTIONAL STUDIES. 

In short, the United States of America never con- 
sisted of States wholly sovereign and apart from one 
another, and capable each of independent, separate, 
and distinct action. As for most of those jurisdic- 
tions at present comprising the American Union, 
their origin, subsequent to the adoption of our 
present Federal constitution, placed them severally 
in a filial and subordinate relation; each was nur- 
tured and reared on the national territory, under 
national regulations, and, when adult, admitted upon 
fundamental terms prescribed by Congress as a full 
State and fellow-member of the Supreme Federal 
Union. Of foreign annexations to the United States, 
Texas, as a de facto republic, but not formally recog- 
nized as such by Mexico, adopted the constitutional 
conditions held out by Congress, while Louisiana 
and Florida served first a territorial probation. No 
members whatever of this Federal Union have had 
the historical right to be considered sovereign and 
independent in more than a secondary sense, except 
the old historical thirteen, who together dissolved 
allegiance with Great Britain, conquered their united 
independence, and formed for themselves a confeder- 
ate league, and then, as ordained by the people, a 
closer union. But even they, until absolved in 1776 
from allegiance to the mother country, were all ruled 
severally as offspring and dependencies of the British 
Crown; and from that subject condition they each 
and altogether passed at once into a new subordina- 
tion to the continental union symbolized by their own 
Congress. Simultaneously, indeed, with independ- 
ence, articles of permanent Federal union which 
should have a delegated operation were contemplated ; 
and during the delay of formulating that new plan, 
the Continental Congress, without more explicit 
credentials than necessity and public opinion might 



INDEPENDENCE AND REVOLUTION 83 

have conceded to that body, guarded by the annual 
choice of delegates in each State through convention 
or legislature, raised a common army and a navy, 
contracted common debts, apportioned State quotas 
of money, men, and supplies, carried on foreign rela- 
tions as a single sovereign power, and assumed plenary 
powers of war and peace. From Articles of Con- 
federation, styled perpetual, and so accepted by 
them, these thirteen States emerged into the better 
Union devised by our still operative constitution of 
1787. Through all such fundamental changes in 
Anglo-American institutions there was not a moment 
when any of these Atlantic communities could be 
deemed sovereign, independent, and free from a 
supervising political authority in a legal and practical 
sense, except, perhaps, for Rhode Island and North 
Carolina, during the year or two following 1788 that 
they refused to ratify the new Federal constitution, 
while the other States, choosing Washington for 
President, and rallying to the united support of his 
first administration, entered upon the new era of 
national existence without them. 



III. 

ARTICLES OF CONFEDERATION. 

1781-1789. 

The original United States of the Revolution were, 
for five years following July, 1776, held together by 
a sort of de facto alliance, and by the practical dele- 
gation of common authority to Congress by the old 
thirteen States without a strictly formal sanction. 
Some legal writers of unquestioned repute consider 
that first continental government of this Union as 
strictly revolutionary in character. ^ Yet the impor- 
tant historical circumstance should not be overlooked 
that a written and formal plan of permanent confed- 
erated union was meant by the Continental Congress 
to be essentially contemporaneous with the Declara- 
tion of Independence itself; that the Declaration by 
its own language indicates that purpose ; and that not 
only in the Congressional debates which preceded the 
British separation, but as one of the formal resolves 
which prefaced that momentous action, a plan of con- 
federated union was, June 11, 1T76, to be drawn up 
for formal adoption. Thus, while one committee 
prepared the inst]:ument of independence, another 
was engaged upon that of union, reporting it for 
debate only eight days after the famous July 4th. 
Discussed by Congress during the same July in com- 
mittee of the whole, this plan of union suffered 
further delay, as such plans are likely to while war 

1 Cooley's Elements of Constitutional Law, 9. 



ARTICLES OF CONFEDERATION. 85 

absorbs men's minds; but at length, agreed to in 
Congress, November 15, 1777, with some unimpor- 
tant amendments, the scheme of Confederation went 
out to the States for their formal and separate sanc- 
tion. A few of the smaller States, howeyer, deferred 
ratifying, nor was it until 1781 that Maryland, after 
gaining an important concession to the Confederacy 
independently of the instrument, made the compact 
and sanction of continental Union complete. ^ Yet 
through the whole intervening period Congress had 
exercised for the emergency its contemplated powers, 
as though formally clothed with them, while the 
American people acquiesced because such had been 
their own fundamental intent. A continental army 
fought meantime for independence under a continental 
commander-in-chief, obedient to tliis unempowered 
Congress, and in the name and under the flag of the 
Confederacy; and on behalf, moreover, of the new 
"United States of America" were sought foreign 
recognition in Europe, foreign loans, and foreign 
alliances. 

At length, under the ratified and completed Articles 
of Confederation, and as a fully legitimated parch- 
ment government. Congress reassembled, March 2, 
1781, for its usual business, making no special recog- 
nition of its new status; but rather as though to 
navigate for the future with a chart where they had 
been piloting as best they might without one. 
Examining these Articles of Confederation, we see 
that the main design, agreeably to their origination, 

1 Maryland's delay was not without good purpose ; which was to 
force large States like Virginia, having claims in the unsettled north- 
west territory beyond the Appalachian range, to cede their individual 
rights in favor of the common Union. See monograph (1878) of Dr. 
H. B. Adams. The Articles of Confederation expressly provided that 
" no State shall be deprived of territory for the benefit of the United 
States." Articles, IX. 2. 



86 CONSTITUTIONAL STUDIES. 

was simply to invest this representative Continental 
Congress of the thirteen States with such powers as 
naturally and of necessity pertained to a continental 
and united exercise of public authority, and as public 
opinion already upheld. ^ 

The general scope, then, of these "Articles of 
Confederation," as we gather by a study of the 
adopted instrument, coincides with that of the ex- 
temporized and preliminary Revolutionary govern- 
ment of the Union; jealous provision being quickly 
applied to constrain and limit those formidable 
powers, by reserving expressly that each State shall 
retain "its sovereignty, freedom, and independence, 
and every power, jurisdiction, and right, which is 
not by this Confederation expressly delegated to the 
United States in Congress assembled. "^ Except, 
indeed, for what Maryland is seen to have finally 
gained in behalf of the common territory, the changes 
wrought out by time and discussion in Congress 
after the plan was first reported from committee, seem 
to have been mostly in the cautious direction of cir- 
cumscribing this new Federal supremacy; nor was 
Maryland's happy gain, out of which grew our grand 
system of public land settlement and the procreation 
of new States westward, in the nature of an amend- 
ment to those Articles, but rather so as to induce 

1 The committee appointed, June 11, 1776, to prepare a form of 
Confederation consisted of one member from each colony. John 
Dickinson appears to have had the chief hand in drafting the com- 
mittee's instrument ; but the work was most likely a composite one, 
seeking to formulate a scheme which Congress was already develop- 
ing into action. Little is really known concerning the details of these 
"Articles of Confederation'' as the composition took its final and 
historical form. 

Dickinson's draft of 1776, as well as one which Franklin had pre- 
pared in 1775, proposed ampler powers than the final Articles granted. 
Story, Constitution, § 284. 

2 Articles, II. 



ARTICLES OF CONFEDERATION. 87 

legislation by the old Continental Congress of doubt- 
ful constitutional warrant, as Articles were expressed, 
though justified by the terms of Virginia's voluntary 
cession. 

In these Articles, the chief fact that confronts us 
is that the Montesquieu idea of a distinct separation 
of powers for well-ordered goyernment is wanting. 
Such government was thought to answer for States 
at the outset, but not for the Union. We find, then, 
no distinct Executive nor distinct Judiciary provided ; 
but all common powers of the Confederacy, as they 
were first laid off, vested in that general Legislature 
styled the Continental Congress. Nor was this 
Congress a fully developed legislative body. It con- 
sisted of but a single house ; its members were chosen 
in practice not by individual voters, but by a State 
legislature ; ^ members did not vote on questions as 
representatives chosen upon a poll or property basis, 
but simply as a State delegation or unit. All States 
were coequal and alike in that body, no matter what 
the relative number of soldiers they might supply or 
the relative sums poured out in the costly struggle 
for freedom ; and it was the noble self-denial of the 
greater States, not the urgency of the smaller, that 
first made continental union possible. In fine, the 
advance of political construction from the old pro- 
jected Committee, or Grand Council, of colonial times 
had not been so very great for this first fundamental 
government of the American Union. 

This Continental Congress all the more resembled 
a colonial Board of Commissioners, or Grand Coun- 
cil, from its choice to sit constantly as a secret body, 
publishing no report of its debates, and gaining neither 

1 Yet delegates were nominally to be appointed in such manner as 
each Legislature should direct, and hence might have been popularly 
chosen. Articles, V. 



88 CONSTITUTIONAL STUDIES, 

buoyancy nor direct guidance from public opinion. 
Delegates, not less than two nor more than seven 
from each State, made up the quorum that voted as a 
State unit, thus diminishing still further all sense of 
individual responsibility to constituents ; and it was 
provided that no person could serve more than three 
in any term of six years. Each State paid the recom- 
pense of its own delegation,^ and might at any time 
recall a delegate and send another in his place. And 
thus did it become matter of familiar remark, after 
the first impulse of patriotic energy had subsided, 
that the ablest of Revolutionary civilians gave their 
talents, in preference, to the service of their respective 
States, leaving Congress to shift as it might in the 
continental conduct of affairs, often without a quorum 
of delegates at all to represent the State on an impor- 
tant issue. 

Congress was invested with authority to appoint a 
"Committee of the States," consisting of one delegate 
from each State, to sit in the recess ; but this expe- 
dient did not work well. It had authority, more- 
over, to appoint a presiding officer ; yet the President 
of Congress was scarcely more than a ceremonial 
functionary. 2 Seven out of these thirteen States, 
coequal in voting, might, despite all such obstruc- 
tions, have proved by their majority competent for 
conducting affairs, had not these Articles, as though 
fearful of efficiency, made the affirmative assent of 
nine States present and voting by a quorum of their 
respective delegations needful in all the most impor- 
tant public business. For without such affirmative 
assent of nine out of thirteen States, Congress was 
forbidden to engage in war, enter into treaties or 
alliances, coin money and regulate its value, ascer- 
tain money quotas, emit bills, borrow or appropriate 

1 Articles, V. - Articles, IX. 5 ; X. 



ARTICLES OF CONFEDERATION. 89 

money on the credit of the United States, agree upon 
the number of land or naval forces to be raised, or even 
appoint a commander-in-chief of army or navy.^ 

However fairly one may construe this government 
with reserved State sovereignty as a confederated 
league, he should observ^e that whatever general 
powers were actually given by this instrument were 
given as though permanently and forever; for these 
Articles were styled " Articles of Confederation and 
Perpetual Union." They expressly invited the 
further accession of Canada, and provided (with the 
assent of nine States) for the possible admission of 
other colonies ; and they made solemn stipulation to 
abide severally by the constitutional determinations 
of Congress, and that the Articles " shall be inviolably 
observed by every State, and the Union shall be per- 
petual." ^ The American people well understood 
already that in union there was strength, and with- 
out it sure disaster. But the practical defect of the 
whole primitive system of union, and that which 
finally ruined it was, as history shows us, the want 
of a practical amending power; for no alteration in 
these Articles could ever be made, as the instrument 
prescribed, unless (1) agreed to in Congress, which 
was proper enough, and (2) confirmed afterwards by 
the Legislature of every State. ^ But this latter pre- 
requisite proved at the crucial test impossible. 

Vast, undoubtedly, were the original powers thus 
delegated to the Union, had the several States but 
bestowed them in a manner to permit of their efficient 
exercise. For the nominal authority of these " United 
States in Congress assembled," under the sanction of 
the "firm league," now entered into, was sole and 
exclusive (with some minor reservations) in determin- 
ing peace and war; in foreign intercourse and foreign 

1 Articles, IX. 6. 2 Articles, XI., XIII. ^ Articles, XIII. 



90 CONSTITUTIONAL STUDIES. 

alliances ; in regulating captures and prizes, or grant- 
ing in times of peace letters of marque and reprisal ; 
in "appointing courts" for the trial of piracies and 
felonies committed on the high seas, and for deter- 
mining captures ; in regulating the value of coin and 
the standard of weights and measures; in managing 
all trade and affairs with the Indians ; in establishing 
and regulating post-offices; in appointing all army 
and navy officers in the service of the United States, 
excepting regimental officers of the land service ; and 
generally in regulating and directing all warlike 
operations. 1 Congress was further empowered to 
ascertain, appropriate, and apply such sums as might 
be needful for the public expenditure; to borrow 
money or emit bills on the credit of the United 
States, transmitting its accounts half-yearly to the 
States; to build and equip a navy; to make requisi- 
tions on the several States for quotas of troops appor- 
tioned on a basis of white population. ^ All charges 
of war and other expenses " for the common defence 
and general welfare " were to be defrayed out of a 
common treasury which the several States were to 
supply in proportion to the value of lands and 
improvements in each jurisdiction, as Congress might 
estimate from time to time. The States themselves, 
under direction of their several Legislatures, were to 
levy and collect their several portions of the common 
tax ; ^ and thus, as experiment proved. States became 
delinquent in supplying their contributions, while 
the delinquency of one State prompted the delin- 
quency of others. All bills of credit emitted, all 
money borrowed, and all debts contracted by Con- 
gress before these Articles of Confederation went 
formally into operation were declared solemnly bind- 
ing upon the United States. 

1 Articles, IX. 1-4. 2 Articles, IX. 5. » Articles, VIII. 



ARTICLES OF CONFEDERATION, 91 

Coupled with such grant to Congress of general 
powers which initiate much of the sovereignty still 
exercised by our Federal government under a far 
better sanction, were various prohibitions upon the 
individual States. They were not to hold independ- 
ent foreign intercourse nor make independent treaties 
regardless of Congress ; they were not without con- 
sent of Congress to enter into alliances or confedera- 
tions among themselves; they were not to keep up 
armies and navies of their own in time of peace, but 
to rely locally upon a well regulated and disciplined 
militia; they were not at their own instance to en- 
gage in. war nor to issue letters of marque and reprisal 
in time of peace unless invaded or in imminent 
danger. 1 When raising land forces for common de- 
fence, each State was still to appoint its own regi- 
mental officers. 2 

The interstate advantages of a consociation, like 
this were at once appreciated, as they have been ever 
since, and as the New England Confederacy had 
prized them. Articles of Confederation declared the 
free inhabitants of each State entitled to all privi- 
leges and immunities of free citizens in the several 
States. The free right of ingress and egress was 
conceded to or from different States, together with 
reciprocal privileges of trade and commerce, so far as 
the new and imperfect system might reasonably 
afford them; the interstate surrender of fugitives 
from justice was stipulated ; and full faith and credit 
was to be given in each State to the records, acts, 
and judicial proceedings of every other State. ^ 

But restraints upon restriction made the original 
grant of delegated powers to this Union so parsimo- 
nious, after all, in some particulars, that only a minute 

1 Articles, VI. ^ Articles, YII. 3 Articles, IV, 



92 CONSTITUTIONAL STUDIES. 

study of the text itself can enable us to apprehend 
the true limits. Comparison, therefore, with the 
broader transfer of Federal powers to our later con- 
stitution will be useful when analyzing that more 
perfect instrument. But it is worthy of final mention 
here, as showing the league character of our " Articles 
of Confederation," and the alliance of 5'^6as^-sovereign 
States, that the mode of State ratification kept up 
sedulously the idea of a delegated authority to the 
new government. Congress, as the single delegated 
council of these thirteen coequal States, framed the 
Articles, and then proposed them, not to conventions, 
but to the several State Legislatures for adoption. 
These State Legislatures, as representative agents 
each of the State and its inhabitants, authorized duly 
their several delegations in Congress to sign the 
Articles "on the part and behalf of the State." All 
was done by compact and power of attorney, high 
above the heads of the common people, and without 
direct reference in the least for their fundamental 
approval. Not a word or suggestion of a State con- 
vention fresh from the inhabitants, nor of immediate 
and authoritative* sanction derived from them, appears 
in the whole solemn establishment as if by treaty of 
this common government of the United States ; and 
yet each State delegation in Congress, while ratify- 
ing, as a unit, these Articles of Confederation, "by 
virtue of the power and authority " given for that 
purpose, as their signatures recited, solemnly and 
expressly pledged and engaged the faith of its State 
constituents to abide by the "perpetual" Union 
thereby established. ^ 

1 See Articles, ratifying clause at the close. 



IV. 



THE FEDERAL CONSTITUTION; ITS NATURE AND 
ESTABLISHMENT. 

1787-1789. 

It is matter of familiar American history that the 
Articles of Confederation, feeble enough for their 
amplest and most essential exercise of supremacy 
during the long and exhausting struggle for a com- 
mon independence, failed utterly as the efficient 
instrument of peace and recuperation. Their radical 
defect consisted in attempting to operate upon States 
in a collective capacity, and to exert an authority 
whose sinews depended upon a co-sovereign supply. 
Under the unexampled stress and strain of State 
necessity, the common government of this Union 
found but a careless heed to its wants, notwithstand- 
ing the solemn pledge and obligation to relieve them. 
Abstractly, to be sure, and as a matter of funda- 
mental right, Congress might have summoned all the 
military forces of the Union to compel the money 
quota of a delinquent sovereign; practically, how- 
ever, any attempted compulsion of the kind could 
only have hastened anarchy. And thus did the 
Union, projected nobly in the very sublimity of 
patriotic passion, sink contemptuously into a govern- 
ment of exhortation, not command; and as one 
writer said of its Congress, with reference to the 
delegated supremacy which they sought to exercise, 
"they may declare everything, but do nothing." 



94 CONSTITUTIONAL STUDIES. 

History teaches that the last hojDe of saving the old 
Confederacy from irresistible wreck was to gain an 
amendment to existing Articles which might make 
Congress potent to collect a modest impost duty for 
general purposes during a moderate and specific 
length of time. The positive refusal of a single 
State bent on self-aggrandizement defeated that 
amendment, and the doom of the Confederacy was 
sealed. 

How, then, could the American people escape 
national calamity ? Only by resorting to their own 
final remedies for self-preservation, — their own inhe- 
rent right, in fact, which the Declaration of Inde- 
pendence had so boldly asserted, to alter or abolish a 
form of government destructive of its own rightful 
ends, and to institute a new one. They still wished 
the United States perpetual, as first proclaimed; and 
they set in operation a representative engine, new in 
a national, but old enough in a State, application, 
that of "Convention."^ With popular credentials 
superior to any such partial agency of government 
as a legislature, men met in convention at Philadel- 
phia in 1787, and prepared a renovated plan of con- 
tinental union, comprehensive and efficient as never 
before, and rightly purporting to emanate as an ordi- 
nance of the people. Its reference for adoption and 
a practical establishment was not to State legisla- 
tures, but to State conventions. There was this 
element of revolution — happily a peaceful one — in 
the new scheme, that so soon as nine conventions 
should ratify and commit their respective States to 
it, the new Union would start out on its new career, 
leaving the old league, misnamed "perpetual," to 
perish with its obstinate remnant. Revolution was 
thus far inseparable from the crisis, from " the grind- 

1 See supra, page 46. 



THE FEDERAL CONSTITUTION. 95 

ing necessity," as John Quincy Adams has styled it, 
which had compelled an ampler Federal government 
as the only escape from anarchy. Persuasion accom- 
plished the work of conviction; ten States ratified, 
and stubborn New York acceded as^the eleventh; 
after which safe alliance the perilous situation of 
Rhode Island and North Carolina, widely separated 
as they were, and their own returning sense of 
national sisterhood, brought them as the last loi- 
terers into the fold, and the new United States of 
America stood re-created. 

But if this dissolution of the old confederate league, 
or rather its supersedure by a new and more efficient 
Union, is to be styled revolutionary at all, it was 
only so in a partial sense. The Articles had ex- 
pressly forbidden the confederation or alliance of two 
or more States, " without the consent of the United 
States in Congress assembled;" and aside from any 
application here of such a clause, it was impolitic 
and unfair to ignore the rightful repository of Federal 
power when promulgating the new Philadelphia plan. 
Nor did the framers of 1787 propose any such diso- 
bedience. No sooner was their finished scheme put 
forth at Independence Hall than they hastened to 
procure, first of all, the sanction of the Continental 
Congress, then in session at New York. That sanc- 
tion, which permitted the free proposal of this new 
plan to the several State conventions, was given, 
and given speedily, before a single State took action 
upon the instrument. 

Any notion that our Federal constitution of 1787 
was a spontaneous birth must be a false and fanciful 
one. Our brief exposition of the facts has shown 
that it was a gradual conception; in other words, 
that it ripened as the matured fruit of political expe- 



96 CONSTITUTIONAL STUDIES. 

rience. Two leading influences are traceable in its 
composition: (1) the American Confederacy, formu- 
lated, defined, and sanctioned by the Articles adopted 
in 1781, but, in. point of fact, originating several 
years earlier in united Revolutionary resistance to 
the mother country; (2) the written constitutions, 
already in full operation, of thirteen individual 
States. From the former came that mass of dele- 
gated Federal powers, which upon experiment were 
found to need enlargement and addition; from the 
latter, outlined in bold relief, the main elements 
essential to a stable and well-ordered government on 
the Montesquieu plan of a threefold division, inclu- 
sive of a bicameral legislature, and also (by the 
time the plan became modified by the first ten amend- 
ments) of a declaration of rights. But the applica- 
tion of existing models to a new and difficult piece of 
workmanship which excelled them all, was a marvel- 
lous creation. 

The main change here effected from the former 
confederate government consisted in replacing the 
league of co-sovereign States by a national, or, 
rather, it should be said, a federo-national govern- 
ment, which should operate largely upon the people 
as individuals, and not upon States collectively; 
and this made an immense remedial difference. But 
the several States were still left with great dis- 
cretionary powers in united concerns; as, for in- 
stance, in appointing Presidential electors, and in the 
voting qualifications needful for choosing Represen- 
tatives to Congress. When the Federal constitution 
first went into operation, our States had still the 
crust of British aristocracy; and the constitution of 
the United States, as concerned its own structure, 
permitted of quite an aristocratic operation, had 
States so willed it; but the contrary happened, and 



THE FEDERAL CONSTITUTION. 97 

American institutions, both State and Federal, be- 
came gradually democratized through the irresistible 
genius of popular self-government. Most fortunate 
was it for the general happiness of America that this 
instrument of union, so rigid in its textual mould 
and so difficult to alter, left its political scope so free 
for circumstances to shape. That the new scheme 
meant, however, that Federal power should be exerted 
more independently and effectively than before, and 
within a wider range of supreme action, whether 
this or that set of men might happen through State 
selection to control its exercise, is obvious, not only 
from a general survey of the constitution itself, but 
from certain specific expressions compared with those 
of the superseded Articles. It is no longer the States 
that "severally enter into a firm league," ^ but "we, 
the people," who "ordain and establish." Perpetual 
in intent as before, the new purpose is to establish 
permanency by suitable mccins for the people and 
their posterity. The word " Confederacy " disappears 
forever from the style of " United States of America." 
A "more perfect union" is one of the main objects 
stated in the nev/ preamble; and even when State 
jealousy pressed an immediate amendment expressive 
of reserved rights not delegated to the Union, the 
text of that amendment expressed such reservation 
not to States alone, as in the Articles of Confedera- 
tion before, but to " the States respectively or to the 
people."^ In the instrument as originally drawn up 
and formally adopted was no allusion to reserved 
rights at all. 

1 Articles, III. 

2 Cf. Articles, TI., and Constitution, Amendments, X. The letter 
of the Philadelphia convention, which in 1787 submitted the new in- 
strument for the consideration of the Continental Congress, avowed as 
the object of the new scheme and the greatest interest of every true 
American, " the consolidation of our Union." 

7 



98 CONSTITUTIONAL STUDIES. 

Not a member of that glorious assembly at Phila- 
delphia approved in all respects our original Federal 
constitution when they signed it. By a very close 
majority in some of the State conventions did it se- 
cure an unqualified ratification at all ; and that only 
upon the assurance of amendments such as the first 
Congress under our new government at once sent 
forth, and whose adoption quickly followed.^ But 
here, as always, how best actually to secure the good 
and remedy the evil was the problem of the times ; for 
all good institutions come by accretion ; and as Burke 
has wisely observed, "Government is a practical 
thing made for the security and happiness of man- 
kind, and not to please theorists." 

1 See Constitution, first ten amendments, proposed in 1789 and 
declared adopted in 1791, 



V. 



FEDERAL COS-STTTUTION ANALYZED ; STRUCTURE 
AND DISTRIBUTION OF POWERS ; LEGISLATURE. 

Let us now examine in detail the constitution of 
the United States under which we live, and which 
has preserved American liberties for more than a 
century; an instrument rather inflexible in form, as 
any written constitution must be whose change is not 
readily brought about, and yet within that form 
capable of giving the nation a splendid development. 
The exceeding brevity of its expression, its pragmatic, 
concise language, enumerating powers rather than 
defining them, and avoiding all " glittering generali- 
ties " and the disposition to dogmatize, despite some 
notable examples among contemporary States of 1787, 
have elicited the admiration of scholars and statesmen 
of the old world. 1 It may be that the bitter humilia- 
tions which the proud, primitive Union was then 
undergoing made the present framers indisposed to 
high-sounding abstractions, since their assembled 
purpose was to check lawless liberty and teach citizens 
to obey; and practical, moreover, in pushing their 

i Mr. Bryce, who is fond of impressive comparison, observes that 
our Federal constitution with its amendments may be read aloud in 
twenty-three minutes ; that it is about half as long as St. Paul's first 
Epistle to the Corinthians, and only one fortieth part as long as the 
Irish Land Act of 1881. "History shows few instruments," he adds, 
" which in so few words lay down equally momentous rules on a vast 
range of matters of the highest importance and complexity/' 1 Brvce, 
Commonwealth, 363. 



100 CONSTITUTIONAL STUDIES. 

plans, they knew it was best to go forth to the States 
with an instrument which avoided interpretation and 
left something to be imagined. Articles of Confed- 
eration had been similarly brief, though often far 
more involved and obscure in statement. 

The new Federal government, as thus arranged, 
was composite; in strictness neither national nor 
confederate, but a composition of both. "In its 
foundation," explains Madison in the "Federalist," 
" it is federal, not national ; in the sources from which 
the ordinary powers of the government are drawn, it 
is partly federal and partly national ; in the operation 
of these powers it is national, not federal; in the 
extent of them again, it is federal, not national ; and 
finally, in the authoritative mode of introducing 
amendments, it is neither wholly federal nor wholly 
national."^ The justice of this contemporary expo- 
sition will appear more fully as our analysis of the 
text proceeds. To borrow, again, the demonstration 
of a century's experience, the constitution of the 
United States is an instrument of government, agreed 
upon and established in the several States by the 
people through their empowered representatives pri- 
marily in convention, to be operative upon the people 
individually and collectively, and within the sphere 
of its just powers upon the government of the States 
also.^ Furthermore, the Union thus established is 
an indissoluble one, in continuance and confirmation 
of that which the States had in the nature of a per- 
manent league established previously. If ever there 
was ground at all for the interpretation which our 
Calhoun school of statesmen once put upon it, — 
namely, that States still reserved a sovereign and 
paramount right to nullify and to withdraw from the 

1 Federalist, No. 39. 

2 Story's Commentaries, § 311, Judge Cooley's note. 



FEDERAL CONSTITUTION ANALYZED. 101 

Union, — that theory was quenched in the civil strife 
and bloodshed of 1861-65, so that the very States 
which in its advocacy provoked the agonizing test 
were overwhelmingly defeated. Their State consti- 
tutions now repudiate all such dogmas in language 
unequivocal. Indeed, the ties of common fraternal 
intercourse, woven with tenfold more complexity 
than before into the intimate fabric of Union, render 
this reunited government irresistibly and permanently 
— short of such unhappy fate as the sword of suc- 
cessful revolt may compel in some remote and un- 
foreseen contingency — " an indestructible Union of 
indestructible States."^ Long, in fact, before civil 
war and the immense sacrifice of blood and treasure 
which it cost to vindicate this establishment of the 
whole people as permanent, the whole irresistible 
tendency of national policy had been to advance the 
national glory and influence against all rivalry of 
individual States ; and some of the Presidents of the 
old era, such as Jefferson, Jackson, and Polk, who 
most protested against encroaching upon State au- 
thority, did most, by acquiring foreign territory 
or otherwise, to consolidate the strength of the 
Union. 

Inexplicit as was our Federal constitution on 
many points which public policy might historically 
determine, that policy or national usage, developed 
from precedents long acquiesced in by the people, 
tends to efface all constructive doubt and fix per- 
manently the rule of the constitution. But when 
interpreting any written constitution, we should 
gather its sense from the general tenor of its lan- 
guage, from the whole scope of the instrument, and 

1 Chief Justice Chase for the Supreme Court of the United States, 
in 7 Wall. 100. 



102 CONSTITUTIONAL STUDIES. 

not from particular terms. ^ We should construe 
according to the just intendment of the instrument, 
neither too literally nor too freely ; giving to the lan- 
guage used its reasonable and natural sense. ^ We 
should interpret, furthermore, in the light of the law 
as existing when the constitution or its particular 
phrase was adopted, and as reaching out not for new 
guaranties so much as for guaranties already recog- 
nized.^ And we should so construe as, if possible, 
to give proper efficiency to powers which are nominally 
granted.* 

To enter now upon our analysis of the text, the 
constitution of the United States is seen to begin 
with a striking preamble. Preambles in documents 
of a law-making character are not usually of prime 
importance, being little more than explanatory of the 
purpose in changing and of the ills to be overcome ; 
they do not apart confer or take away fundamental 
powers. But the present preamble is virtually an 
adaptation from the third of the Articles of Confed- 
eration. ^ There it was said that the States " severally 
enter into a firm league of friendship with each 

1 Thus, to take the preamble alone, it has been argued that " we 
the people ... do ordain and establish this constitution " sufficiently 
proves the government national and popular. Yet, when we see among 
various other provisions that (Article VII.) the ratification of the con- 
ventions of nine States shall establish this constitution between the 
ratifying States, we find that a composite or " federo-national " govern- 
ment is its true character. 

2 158 U. S. 618. 

3 156 U. S. 237. 

4 "As men whose intention requires no concealment generally em- 
ploy the words which most directly and aptly express the ideas they 
intend to convey, the enlightened patriots who framed our constitu- 
tion, and the people who adopted it, must be understood to have em- 
ployed words in their natural sense, and to have intended what they 
have said." Marshall, C. J., in 9 Wheat. 1, 188. 

5 Articles, III. 



PREAMBLE TO CONSTITUTION. 103 

other;" but here that "we the people ... do 
ordain and establish this constitution," — a profound 
and highly suggestive difference. Three of the 
objects stated in that article are here repeated with 
slight variation : namely, (1) to provide for the com- 
mon defense; (2) to promote the general welfare;^ 
and (3) " to secure the blessings of liberty to our- 
selves and our posterity. "^ But three new objects 
are added, hinting at former imperfections now to be 
remedied : (4) to form a more perfect union ; (5) to 
establish justice ; ^ and (6) to insure domestic tran- 
quillity.* An ancient philosopher urges that, as in 
musical composition, every great act of legislation 
should have its lofty and appropriate prelude; and 
many a document of Revolutionary origin, many a 
Revolutionary statute which embodies some grand 
reform, is prefaced by a high-sounding preamble; 
that, however, which made this Union efficient, chose 
only the dignity of a compressed recital. 

The first three articles which follow this preamble 
in the text distribute the powers of government con- 
formably to Montesquieu's maxim, as the States had 
already done; but without dogmatic announcement, 
and far more appropriately in some respects than any 
State had heretofore seen fit to apply the precept. 
The executive independence here accorded was really 
remarkable, in view of prevalent State practice, 
which hampered that department so greatly, though 
it is possible that the rude experience of some of 

1 " Their mutual and general welfare." Articles, III. 

2 " The security of their liberties." Articles, III. In securing " to 
ourselves and our posterity," the " perpetual " intent of the Union is 
maintained as before. 

^ A real Federal judiciary had been wanting under the old system. 
* In special allusion, apparently, to the Shays insurrection and 
other State disturbances, which induced the convention of 1787. 



104 CONSTITUTIONAL STUDIES. 

those young sovereignties had already bred a general 
discontent with the tyrannous tendencies of the 
Legislature. "The accumulation of all powers, 
legislative, executive, and judiciary, in the same 
hands," says the "Federalist," in that momentous 
canvass of 1788, "whether of one, a few, or many, 
and whether hereditary, self-appointed, or elective, 
may be justly pronounced the very definition of a 
tyranny."^ But the accumulation of Federal power 
under the Confederation had been contemptible 
enough; and we still find the line of division some- 
times indefinitely drawn, so that the Legislature, by 
formulating action, retains the ad vantage. ^ 

Article I., which defined and set forth the legisla- 
tive power of the United States, was, however, the 
foremost and the longest in the whole new compact; 
and here, with a reforming spirit which by this time 
pervaded the whole Union, the convention of 1787 
transformed the single Congress into a body con- 
sisting of two chambers, a Senate and a House of 
Representatives. By a compromise most admirable 
the spirited contest between larger and smaller States 
over a basis of representation was so settled that the 
new Senate symbolized the equ.ality of States, as in 
Congress heretofore, while the new House of Repre- 
sentatives was based upon population of the Union 
as apportioned under a census to be taken every ten 
years. Senators were to be chosen by the legisla- 
tures of the respective States, just as delegates to 
the Continental Congress had usually been; while 
members of the House were to be elected " by the 
people of the several States." Under a further com- 

1 Federalist, No. 47. This paper styles Montesquieu "the oracle, 
if not the author," of the precept of separated powers. 

^ " Legislative power deals mainly with the future ; executive 
with the present; while judicial power is retrospective." Cooley's 
Elements, 42. 



THE FEDERAL LEGISLATURE. 105 

promise — obsolete in effect since the final abolition 
of slavery — poll representation under the census was 
to be modified by an allowance of three-fifths in each 
State for such persons as were held in bondage.^ As 
against existing State and Confederate practice, 
which favored annual elections, members of the 
House were to be chosen every second year, while 
those of the Senate were to serve six years, a consid- 
erable term which approached in length the nominal 
septenary of the British House of Commons. No 
constraint upon re-elections to Congress, as under 
the old articles, was imposed for the future. ^ 

That peculiar feature of choosing to the House 
which left the actual qualification of electors (or 
voters) in each State to depend upon the State rule 
for electors to its own " most numerous branch " of 
the Legislature, has already been noticed.^ Through- 
out the Union this rule tends steadily towards full 
manhood suffrage regardless of property; though 
with reasonable exceptions of crime or pauperism, 
and in a very f ev/ States of illiteracy besides, — excep- 
tions which our latest Federal amendments declare 
shall operate no denial to vote on account of race, 
color, or previous condition of servitude.* As to 
requisite qualifications of those chosen to either 
House of Congress, a liberal advance upon State 
policy was at once made in our Federal instrument; 
for no tests were set up but those of a reasonable 



1 This was the real intendment of the expression " all other per- 
sons," the word " slave " being judiciously kept out of the text. Con- 
stitution, I. §§ 2, 3. Under Amendment XIV. § 2 (1866), the rule of 
apportionment is restated so as to meet the new condition of national 
freedom; " Indians not taxed " being still excluded from the reckoning 
as before. See more fully, ipost. 

2 See Article V., page 88. 

3 Supra, page 96. 

4 Amendments XIV., XV. (1866-69). 



106 CONSTITUTIONAL STUDIES. 

limit of age beyond majority, a length of citizenship 
varying slightly for the two branches, and residence 
when elected as an inhabitant of the State in which 
one was chosen. Religious and property distinctions 
cease wholly to apply, and no State has the right to 
impose them in any national candidacy. ^ Nothing, 
however, in the text of the constitution forbids the 
choice of all representatives for any State upon a 
general ticket; and such really was the earlier method 
of choice in most States and the long-continued prac- 
tice in certain of them; but by 1872 Congress 
required uniformity, and the election of members of 
the House must now be, as State usage prefers, " in 
districts of contiguous territory. "^ 

The times, places, and manner of holding elections 
for senators and representatives shall be provided in 
each State (so the constitution declares) by the Legis- 
lature thereof; but Congress may by law at any time 
make or alter such regulations, except as to the 
places of choosing senators. ^ Hence we find further 
national enactments by way of judicious regulation : 
elections (once scattered through the calendar year 
most inconveniently) are to take place uniformly on 
the Tuesday next after the first Monday of Novem- 
ber ; ^ all votes for representatives in Congress must 
be by written or printed ballot; ^ and for the election 
of United States senators by a State legislature the 
time and mode of choice are definitely prescribed.^ 

1 See Story, Commentaries, §§ 624-629, Cooley's ed. 

2 Art. I., § 2; Eev. Stat. U. S. § 23. No Federal provision 
insists that members of the House shall be residents of their several 
districts. 

3 Const., Art. I., § 4. 

4 Rev. Stat. U. S. § 25. 

5 Ih., § 27. 

6 On the second Tuesday after the meeting and organization of the 
Legislature which next precedes the expiration of a senatorial term, 
such Legislature shall proceed to elect ; and at least one ballot shall 



THE FEDERAL LEGISLATURE. 107 

Vacancies occurring in either branch are specifically 
provided for,^ 

No longer dependent upon their several States for 
a precarious recompense, members of Congress were 
henceforth to be paid out of the treasury of the 
United States at a rate of remuneration to be ascer- 
tained by law. 2 As under the old articles, and in 
State fundamental law, they were to be privileged 
from arrest while in attendance on the Legislature 
or while going and returning, except for treason, 
felony, or breach of the peace ; and freedom of speech 
and debate was still assured to them.^ Office-holding 
under the United States was, as before, pronounced 
incompatible with a seat in Congress; and appoint- 
ment to a Federal office created or with emoluments 
increased during such service in Congress was further 
to a stated extent forbidden.* 

The double-house or bicameral feature has proved 
in Congress as elsewhere of vast advantage to public 
stability, introducing delay, afterthought, and the 
opportunity of correction, all the more salutary wher- 

be taken daily during the rest of the session until some one, if possible, 
is chosen. Rev. Stat. U. S. §§ 14-17. 

1 Const., Art. I., §§ 2, 3. 

2 To., § 6. Cf. Articles, V., swpra, page 88. Congress has by 
law changed from time to time the method and rate of compensa- 
tion, — sometimes fixing a -per diem, but latterly establishing a stated 
salary. Mileage has also been allowed so as to better equalize the 
common recompense, since travel from their respective homes to the 
capital varies with membership so widely. Increase of compensation 
should be prospective, if possible, for constituents have invariably re- 
buked a Congress which assumed to raise its own pay. At the outset 
of Federal government, the Senate undertook to assert a superior 
dignity, claiming higher pay as an incident ; but the House resisted 
all such pretensions and compelled an equal compensation for both 
branches. 

3 Const., Art. I., § 6, and cf . Articles, V., supra. 

4 Ih. As to State example on such points, see swpra, page 56. 
The venal and insidious influence upon Parliament of a British min 
istry served as a warning to Americans in those early times. 



108 CONSTITUTIONAL STUDIES. 

ever the two branches combine public influence differ- 
ently ; nor can venality gain its ends so readily under 
such double adjustment. Public bodies always tend 
strongly to tyrannize and accumulate force; and 
while friction ought not to be so great as to block 
business or dishearten great reforms, deferred legis- 
lation is better than crude and unwise enactment. 
Each branch of our American Congress has a rational 
and not adventitious basis of its own, — a basis which 
in a certain sense is popular ; and were it not for two 
faults in our present Federal system, the Senate, de- 
spite its exasperating defiance sometimes of national 
opinion, would prove an excellent bulwark for con- 
servatism. These faults are : (1) the too great facility 
for creating new States by the concurrence in Con- 
gress of bare majorities, so that older States, im- 
mense in numbers, wealth, and intelligence, become 
overborne permanently in the Senate by wild and 
drifting communities at the remote west who seize 
upon political power, while yet the elements of state- 
hood are raw and unassimilated ; (2) the election of 
all senators by a legislature, which at least is a 
method of choice quite out of date with a progressive 
democracy, and has favored in many States an insid- 
ious and underhand manipulation.^ Designedly, and 
under favoring conditions in full effect besides, the 
Senate of the United States — far less even now in 
numbers than the French Senate or English House 
of Lords, though more readily, perhaps, commanding 
an attendant majority — is a deliberative body of 

1 While our Federal constitution continues unchanged in this re- 
spect, the hest recourse of States and the people is — as Illinois has 
exemplified on two memorable occasions — to project the candidacy 
of rivals for Senator into the popular canvass which precedes the 
choice of legislators, and thus pledge the latter in effect as Presidential 
electors are pledged. 



THE FEDERAL LEGISLATURE, 109 

great dignity and stability, and might command at 
all times the most talented and virtuous of the whole 
people, if only the State would summon such men; 
it is rightfully the forum of national eloquence and 
the palladium of political wisdom. Our House of 
Representatives, though a much smaller body than 
the British House of Commons and the French 
and Italian chambers which correspond to it abroad, 
proves less the arena of debate than of action, and 
under the operation of rules lapses into a huge intel- 
lectual machine for the achievement of business ; and 
feeling so quickly, moreover, and so constantly, the 
passing moods of popular opinion, its members, sub- 
missive each under compulsion to his own constituency, 
allow their own independence to be shackled, or else 
assert it at the sacrifice of a precarious public agency. 
In this there are doubtless advantages to the people 
themselves. But the courtesy, quiet, and freedom 
of the Senate has been contrasted with the turbulence 
of the House of Representatives ever since both 
bodies occupied with open doors the same building. 
And to make the Senate all the more stable by com- 
parison, with an experienced element in its member- 
ship inseparable from deliberation, the classified 
system of rotation already in vogue in certain States ^ 
was here applied, so that one-third of this Federal 
chamber, and no more, should vacate their seats for 
successors every second year, or as each new House 
of Representatives came into power. ^ On the other 
hand, the right of popular district constituencies in 
the States to choose biennially to the House has kept 
the whole people alert in public vigilance, and capa- 
ble of holding one branch, at least, of the Federal 
Legislature directly amenable to their will. 

Congress, as thus constituted, was directed to 

1 Supra, page 54. 2 Const., Art. I., § 3. 



110 CONSTITUTIONAL STUDIES. 

assemble at least once in every year; namely, on the 
first Monday in December, unless they should appoint 
by law a different day.^ The House of Kepresenta- 
tives were to choose their own Speaker and other 
officers; but over the Senate the Vice-President of 
the United States was designated to preside ex officio^ 
while the Senate chose their other officers, including 
a President jpro tempore for all contingencies of a 
vacancy. The fundamental distinction has wrought 
out great divergence in the practice of the two 
houses; for the Speaker of the House, invested by 
consent with the patronage of all committee appoint- 
ments in that popular branch, has become a national 
personage of vast consequence, over whose choice a 
closely divided house has fought many a hard battle 
at its first gathering; but in the permanent Senate, 
organization is almost automatic, the subordinate 
places are quietly filled and committees arranged or 
rearranged as may seem fit to any existing majority 
of the members, who thus control their own patron- 
age, while the Vice-President of the United States 
occupies the chair, unable to vote except in an equal 
division; and the equilibrium of States, each repre- 
sented by two members, continues for most of the 
time unimpaired/^ 

Methods of procedure are defined in the consti- 
tution by various rules, some of which State in- 
struments had prescribed already; both State and 
Congressional usage in America being largely derived, 
however, from the Parliamentary common law of our 
colonial era, here set forth in considerable detail. 
Each house was to judge of the elections, returns, 
and qualifications of its own members ; and a majority 
of each should constitute a quorum to do business, 
while a smaller number might compel under penalties 

1 Const., Art. I., § 4. ^ Art. L, §§ 2, 3. 



THE FEDERAL LEGISLATURE. Ill 

the attendance of absent members.^ Each house was 
to determine the rules of its proceedings, punish its 
members for disorderly behavior, and with a two- 
thirds concurrence resort, if so disposed, to expul- 
sion. ^ Each house was to keep its appropriate journal, 
and publish the record from time to time, entering 
the yeas and nays of members on any question, at 
the desire of one-fifth of those present. Neither 
house could adjourn during the session for more than 
three days without the consent of the other, nor to 
any other place. ^ All bills for raising revenue were 
to originate in the House; but the Senate might 
propose or concur with amendments as on other bills.* 
The method of passing all bills, orders, resolutions, 
or votes to which a concurrence of the two houses 
was needful (except on a question of adjournment) 
involved submission to the President of the United 
States for his approval : if approving, he signed, and 



1 See similar State provisions, swpra, page 56. A majority is the 
usual quorum for business in a deliberative body ; but, regarding the 
practical difficulty of securing regular attendance, a less number is 
prescribed as sufficient in many assemblages. Thus, in the English 
House of Lords three lords constitute a quorum, and in the House of 
Commons (a body of some six hundred members) forty-five may suffice 
for the despatch of business. Story, Constitution, § 834. That less 
than a quorum should be empowered to adjourn or to compel attend- 
ance is a salutary rule. Under the Articles of Confederation the want 
of some such power produced great mischief, for attendance was often 
very dilatory, at the same time that more than a majority of States 
was requisite for all important transactions. 

We have no external tribunal competent for deciding contested 
elections, such as England now provides. 

2 Censure or expulsion is the usual punishment. Members of the 
House have sometimes resigned when censured, and then returned to 
their seats vindicated by a re-election. As to punishing contempt 
shown by persons who are not members, see 103 U. S. 168. 

^ See State provisions, swpra, page 56. 

* lb. The English rule requires all revenue bills to originate in 
the House of Commons. May, Const. Hist., c. 7. See also debates 
in Congress on this subject in 1872. And see pages 56, 57. 



112 CONSTITUTIONAL STUDIES. 

thus gave the measure its full validity and effect; 
but if disapproving, he might interpose his veto, which 
could only be overcome by a two-thirds recorded vote 
in each branch of Congress. Silent retention of 
such bill or resolution by the President for ten days 
without returning it, unless Congress by adjourning 
had prevented its return, gave to such measure the 
same effect as his formal approval. ^ In most of 
these particulars, the text of the constitution is 
plainly enough expressed, and wherever doubt may 
arise, our courts incline to leave the Federal Legis- 
lature to its own chosen procedure.^ 

In addition to legislative functions, which work 
out a distinct routine, while based fundamentally 
upon common English usage. Congress, like many of 
our State legislatures, and after much the same 
fashion,^ is vested with the Parliamentary powers of 
a high court of impeachment, to whose jurisdiction 
all civil officers of the United States, not excepting 
the President himself nor the Vice-President, are 
answerable. The House, as grand accuser and prose- 
cutor for the people, is invested with sole power to 
impeach; while the Senate alone, sitting specially 
upon oath or affirmation, tries the case, renders judg- 
ment, and upon concurrence of not less than two- 
thirds of the members present, may convict the 

1 The executive veto is further considered, post. As to State and 
colonial usage in this respect, see supra, page 62. 

2 In 144 U. S. 1, the Supreme Court refused to treat a Speaker's 
new rule of counting a quorum as an unconstitutional one. Acts of 
Congress enrolled, officially attested by the Speaker and President of 
the Senate, and deposited in the State Department with the President's 
signature, are unimpeachable in the courts for alleged verbal errors. 
143 U. S. 649. Nor does our judiciary incline to question the discre- 
tion of Congress in passing laws and appropriations. 159 U. S. 590; 
163 U. S. 427. 

' Supra, page 67. 



THE FEDERAL LEGISLATURE. 113 

person impeached, and award the sentence. At the 
trial of a President of the United States, the Chief 
Justice, and not the Vice-President, whose interest 
in the succession is immediate, shall preside. Treason, 
bribery, "or other high crimes and misdemeanors," 
furnish cause of impeachment by the House; and 
while sentence by the Senate cannot extend beyond 
removal from office and his further disqualification 
to hold and enjoy any office of honor, trust, or profit 
under the United States, the convicted party is 
nevertheless made further liable to prosecution and 
punishment in the courts of law like any other 
criminal.^ 



1 Const., Art. I., §§2, 3 ; Art. IL, § 4. These impeachment pro- 
visions apply only to " civil ojBScers ; " for military and naval officers 
of the United States are subject to summary trial and sentence by 
court-martial, whether in time of war or peace. 158 U. S. 109. Mem- 
bers of Congress (to accept the ruling of the Senate in 1799, when 
Blount, a Senator, was impeached) are not "civil officers" in this 
constitutional sense; and there are sound political reasons why a 
legislature in one or the other branch should be confined to such 
punishment of its own members, including expulsion, as the funda- 
mental law elsewhere prescribes. While some States before 1789 (as 
seen supra, page 67) were clear in declaring that an officer might be 
impeached while out of office, the text of the Federal constitution is 
not explicit, and an instance occurred under President Grant where, 
after a Cabinet officer's resignation had been hastily accepted by the 
Executive, the House desisted from impeachment upon some such 
scruple; and yet, with the sentence of prospective disqualification 
recognized in the text of the constitution, a plenary power might 
perhaps have been inferred. "High crimes and misdemeanors" is 
rather a vague offence in common-law interpretation, nor perhaps 
would Congress consider its own impeachable discretion limited by 
any common-law barrier. 

Impeachment by the Legislature has not been found a satisfactory 
mode of prosecution and punishment in our American practice. It 
is a cumbersome process, after all, and political bias is very apt to 
influence the result. The adverse course of State constitutions in 
this respect will be traced hereafter (Part HI., post) ; and as to our 
still unaltered Federal mode, it has been found, upon a century's test, 
best adapted to judicial incumbents whose misconduct provokes no 
clear issue of political partisanship. A few such persons have been 

8 



114 CONSTITUTIONAL STUDIES. 

quietly convicted and removed from office ; but in the case of a Su- 
preme Court judge, obnoxious to the party majority for his politics, 
impeachment was once deemed too drastic a remedy to prevail by a 
two-thirds vote ; and so, again, with that of a President of the United 
States. 



VI. 



FEDERAL CONSTITUTION ANALYZED; FUNDA^ 
MENTAL POWERS OF CONGRESS. 

The great fundamental powers of the new Union 
are seen detailed for the most part in the latter part 
of Article I. and more especially in its eighth section. 
True philosophical description would perhaps have 
stated those powers as belonging to the government 
of the United States, instead of to Congress, as the 
text puts it. But Congress had hitherto and for 
nearly fifteen years personified in fact the whole 
dignity and authority of the Union, and this, more- 
over, was the epoch when a representative legislature 
still stood among American States as the peculiar 
segis of a Republican people. The drafting of chief 
Federal powers, as so much to be detracted henceforth 
from State sovereignty, was the noblest accomplish- 
ment of the whole constitution, as it proved for appli- 
cation the most delicate and difficult. The discussion 
to which each important phrase has given rise, in 
courts and the forum of political debate, the defini- 
tions and re-definitions as between State and Federal 
authority which have become needful, are familiar to 
Americans. And here the brief text of enumeration 
has been inundated by copious commentary and expo- 
sition. Contests over the constitutional construction 
of these powers in and out of court have at times 
bred political parties and agitated the whole country; 
giants in intellect and eloquence have been the oppos- 



116 CONSTITUTIONAL STUDIES. 

ing champions, and sovereignty, State and Federal, 
have fought for the mastery. 

As to fundamental powers, in this complex political 
establishment of ours, some propositions developed 
from the long discussion may be stated as well estab- 
lished. Powers are sometimes (1) exclusive in the 
United States; sometimes (2) concurrent in the 
United States and the several States ; and sometimes 
(3) exclusive in the States, those several depositories 
of all residuary pubHc influence. Exclusive powers 
in the State need no enumeration, for they comprise 
all undelegated functions of government, such, for 
instance, as divorce and the probate of wills. Of 
exclusive powers in the United States, import duties 
and the regulation of foreign commerce serve for 
example ; while among plainly concurrent powers are 
those of general taxation and borrowing money. 
But in connection with enumerated powers in our 
Federal constitution, and for their better confine- 
ment, we find enumerated prohibitions which are 
positively expressed; and these prohibitions may be 
(1) to the United States alone, ^ though rarely amount- 
ing to more than the qualification of some power 
expressly given ; (2) to the States ; ^ (3) to both State 
and United States governments.^ Of powers which 
are expressly vested in the United States, and yet 
not in terms exclusively so, some are permissively 
exerted by the several States until Congress legislates 
and Federal supremacy prevails for the time being. ^ 

^ E.g. As to slave-trade suppression before 1808, taxation on 
exports, etc. Const., Art. I., § 9. 

2 Art. I., § 10, 

3 Such as bills of attainder, ex post facto laws, and the grant of titles 
of nobility. Art. L, §§ 9, 10. 

^ As in bankrupt and insolvent systems, which States have regu- 
lated thus far in our history more constantly than the United States. 
" It is not the mere existence of national power but its exercise which 



FEDERAL POWERS DEFINED. 117 

Of express prohibitions to the States some are 
unqualified in language, while some are simply pro- 
nounced subject to the consent of Congress. ^ Sundry 
powers and prohibitions in this constitution have 
direct relation not to Congress, but rather to some 
other department of Federal government. 2 As be- 
tween States severally and the United States, each 
government, unless collision occurs, is entitled to 
complete independence and sovereign exercise within 
its own legitimate sphere of action ; but where such 
mutual exercise provokes collision, it is the Union 
that should prevail as supreme. ^ For the present 
exercise of Federal powers a generous interpretation 
of the constitution with its amendments may fairly 
be claimed, to the extent of rendering the Union 
adequate for great emergencies, and equal at all 
times to the efficient conduct and preservation of its 
momentous trust on behalf of the whole people ; and 
yet, on the other hand, the Federal government 
should not by misconstruction of the language used 
in the great charter whence national authority is 
derived, nor by unwarranted enlargement of its 
manifest expression, destroy or even encroach upon 
the States and their rightful autonomy; since to each 
State still belong the intimate concerns of all local 
inhabitants, save as voluntarily surrendered by fun- 
damental consent given under constitutional forms. 

Under the Articles of Confederation we see Con- , 
gress (then the sole embodiment of Federal authority) 
vested at once and expressly with "sole and exclu- 
sive" rights and powers for various purposes, and 
express prohibitions correspondingly laid upon the 

is incompatible with the exercise of the same power by States.'' 
Cooley's Elements, 34. 

1 Cf. different clauses in Art. I., § 10. 

2 See President's power of making treaties, etc., Art. 11., § 2. 

3 See 139 U. S. 240; 158 U. S. 98. 



118 CONSTITUTIONAL STUDIES. 

States.^ And in the more perfect Union, as was 
done under the imperfect one, Federal government 
should, avoiding "the falsehood of extremes," steer 
safely between disintegration on the one hand and 
centralization on the other. To this intent, and not 
for donating by a sweep powers not elsewhere enu- 
merated, does our constitution of 1787 aid all specific 
authority by the fit supplementary clause that Con- 
gress may make all laws which shall be " necessary 
and proper" for carrying into execution all the 
powers vested by that instrument in the government 
of the United States or in any department or officer 
thereof.^ 

I. The first power specifically given to Congress 
is that of taxation, as operating upon the whole 
Union and its inhabitants, and not, as before, upon 
sovereign States merely, — that power which, if even 
stingily bestowed before 1787 by the thirteen States 
themselves, would probably have postponed indefi- 
nitely the convention and its new plan of Union. ^ 
The power here conferred is "to lay and collect 
taxes, duties, imposts, and excises, to {i. e., in order 
to] pay the debts and provide for the common de- 
fense and general welfare of the United States."* 
We thus observe (1) that the discretionary choice in 
Congress is large as between the various kinds of 
taxes; at the same time that an indirect duty laid 
upon foreign imports has constantly proved the most 
popular and indispensable source of national revenue, 
to which excises (the internal indirect tax), and 

1 See Art. VI. Where constitutionally an act of Congress is 
passed or a treaty effected, this becomes the supreme law of the land. 

2 Art. I., § 8, final clause. 
^ Supra, page 94. 

^ Art. I., § 8, first clause. 



FEDERAL POWER TO TAX. 119 

direct taxation are but secondary.^ And (2) that all 
Federal taxation has its proper enumerated objects, 
and Congress has no unqualified right to impose it. 
Taxation by Congress, for some avowedly private or 
extra-constitutional purpose, would be void.^ All 
duties, imposts, and excises must be uniform, or so 
that the same articles shall bear the same rate of 
taxation throughout the United States, thereby pre- 
venting any Congressional preference of one State 
over another.^ Furthermore, for lessening the sac- 
rifice required of our original States in permitting 
this Federal network to be spread over them and 
surrendering so many sources of their own revenue, 
the constitution provides that direct taxes shall be 
apportioned among the States according to the 
popular basis of numbers adopted for the choice of 
Representatives.* Finally, no tax or duty can be laid 

1 An income tax may be laid on the principle of a direct tax ; and 
so may a tax upon lands or polls. See 158 U. S. 601, Under the 
immense war pressure of 1813 and 1862-1865, the greatest variety of 
taxes were imposed by Congress. 

2 To " pay the debts " of the United States constitutionally con- 
tracted must always be a chief object of Federal taxation. As to 
giving "the common defense and general welfare" a plenary and 
indefinite interpretation there was great controversy in former times, 
but opinion seems to have settled upon a moderate and confined inter- 
pretation of that clause. See Story, c. 14, and Cooley's notes at length. 
Those phrases are seen to have been used (in doubtless a limited sense) 
in Articles of Confederation as well as the present instrument. Supra, 
page 90. 

3 Art. L, § 8, first clause; 102 U. S, 123. Diversity of taxation, 
either as to the amount or species of property, is perfectly consistent 
with uniformity and equality, 142 U, S. 339. 

* Art. I., § 2, third clause ; an adaptation from the older method 
of making requisitions. The meaning of " direct taxes " is now con- 
sistently explained by the courts as including any income tax levied 
upon individuals, as well as taxes on polls or real estate. See 158 
U. S, 601, explaining 3 Dall, 171 ("carriage tax") and other former 
cases. This " apportionment " method of taxation has never been of 
much practical avail, though the offspring of a very important com- 
promise in the convention of 1787, 



120 CONSTITUTIONAL STUDIES. 

upon articles exported from any State, ^ so that our 
customs revenue system is, after all, one-handed for 
effectiveness. The power to tax involves when 
unconstrained the power to destroy; and Federal 
taxation where rightfully applied is sovereign and 
paramount. 2 

II. The power to borrow money on the credit of 
the United States^ is an obvious and indispensable 
function of sovereignty, which, as concerns our 
Union, the Articles of Confederation had already 
recognized.* This Federal power to borrow cannot 
be controlled by the States; no State taxation of 
national securities is permissible; but States may 
still borrow at discretion for their own purposes. 
The borrowing capacity of the Union should properly 
be confined to the same just limitations of constitu- 
tional purpose as the taxing power. Large public 
borrowing comes usually in special emergencies, 
while for ordinary needs money is often borrowed by 
way of anticipating for convenience the regular 
revenue. All debts contracted by Congress on behalf 
of the Revolutionary Confederacy were made obliga- 
tory upon the United States by the original Articles, 
with a solemn pledge of the public faith ; and similarly 

1 Art. I., § 9, fifth clause. See 92 U. S. 372. This constraint was 
procured by jealous staple-raising States for their own immunity. 

2 Thus State bank circulation was wiped out by Federal taxation, 
so as to be replaced by that of national banks. 8 Wall. 533. But 
States cannot tax conversely. 4 Wheat. 316. 

" Articles, IX., clauses 5 and 6, which also expressly granted the 
right to " emit bills of credit," — a power here omitted, but unfortu- 
nately not positively forbidden to the Union. Const., Art. IV., § 8, 
second clause. 

* Public debts seem sometimes inseparable from modern govern- 
ment. The constant settled aim of this Union has been to' get free 
from debt; but once only, and for a brief time about 1835, y/as that 
happy goal reached. Government may borrow money either by issu- 
ing long bonds or by temporary loans. 



REGULATION OF COMMERCE. 121 

all debts of the United States under the old Confed- 
eration were declared equally binding under the 
constitution.^ 

III. The power to regulate commerce was a national 
innovation, and one of the grandest gains for consoli- 
dating national influence which the Federal constitu- 
tion, proposed. If the petty commercial warfare of 
thirteen jurisdictions proved intolerable in 17 8T, 
what would now be that of forty or more? The 
want of some supreme power over navigation con- 
joined with that of levying uniform customs had most 
Mndered the United States from taking rank in 
Europe as a nation competent to make a commercial 
treaty, and degraded the Confederacy fatally in the 
estimation of its ov/n people. This new power was 
conceded therefore in the convention of 1787 without 
opposition or even a division. ^ But the meaning and 
true extent of this power has occasioned constant con- 
troversy and litigation ever since our constitution was 
adopted, and in no respect is the arbitrament of the 
Supreme Court more delicate. By "commerce," as 
it is ruled, the constitution means not ti^affic alone, 
but navigation in its amplest sense; hence Congress 
has passed laws from the beginning, such as favor 
American enrolled and licensed vessels, command 
respect for our national flag on the high seas, and 
employ freely the weapons of reciprocity and favor, 
on the one hand, and on the other, embargo, non- 
intercourse, and retaliation, in aid of America's 
commercial relations with the world. The rights of 
American seamen, moreover, are thus regulated, 
lighthouses and buoys are erected, the coast sur- 
veyed, and (not exclusive altogether of State policy) 

1 Cf. Articles, XII. ; Const., Art. VI. 

2 Art. I., § 8, third clause. 



122 CONSTITUTIONAL STUDIES. 

quarantine, pilotage and wrecks provided for. Under 
an exercise of the same power by Congress the im- 
portation of an undesired foreign population may be 
hindered or suppressed.^ 

All such matters relate especially to American 
commerce with foreign nations, the first branch 
specified in the grant of power. The second branch 
comprises commerce "among the several States," 
whether by land or water. This second specification 
blends often with the first, applying the same general 
doctrine. It has led to the important "interstate 
commerce act" of 1887, which regulates all transpor- 
tation over the surface of the United States by rail- 
way and other carriers which is not limited strictly 
to a State's own confines. ^ The third specification 
embraces commerce with Indian tribes; and here a 
regulating power in Congress harmonizes with the 
uniform policy of the Union, which places such of 
the red aborigines as have not become civilized citi- 
zens under the full and immediate control and disci- 
pline of the general government, whether as subjects 
fit for treaty relations or as mere wards. ^ 

Much of this Federal exercise of power comes, of 
course, into conflict with State authority; and as the 
language of our constitution appears ambiguous on 
the point of Federal exclusiveness, the supreme 
tribunal of the Union has been forced to define and 
apply the rule of constitutional intent in many perplex- 

1 See among other Supreme Court decisions relating to foreign 
commerce, 13 How. 515; 9 Wheat. 1 ; 7 How. 238; 91 U. S. 275. 

2 This important enactment by Congress, including the establish- 
ment of a Federal commission, followed the decision of the Supreme 
Court in 118 U. S. 557. 

3 Cf. under our Confederacy the confused though not dissimilar 
expression of Articles, IX., fourth clause. See also Const., Art. I., 
§ 2, third clause, excluding from representation all *' Indians not 
taxed." 



REGULATION OF COMMERCE. 123 

ing instances of State and national collision. Wher- 
ever genuine conflict thus arises, it is the State that 
must yield to the supreme and sufficient potency of 
the Union. ^ Congress, of course, cannot interfere 
with the commerce which is confined to one State 
exclusively ; the ordinary trade and traffic of a State 
pursued among its own inhabitants, local buying, 
selling and exchange, local contract transactions, for 
the regulation of local travel and communication, 
are all at the discretion of the individual State. In 
short, the commerce of a State which Congress may 
control must be in some sense and at some essen- 
tial stage of its progress extra-territorial. : As to all 
extra-territorial, interstate, or foreign trade and com- 
merce, however, a State has no right to legislate at 
all so as practically to interfere with the United 
States; and wherever the national sovereignty, dig- 
nity, and efficiency would be necessarily impaired in 
consequence, no matter whether the State so intended 
it or not, such local legislation is an encroachment 
upon the powers of the Union. ^ Thus, the regula- 
tion of commerce on a stream whose navigable waters 
are exclusively within the limits of a State belongs 
properly to that State; but where a river, by itself or 
by uniting with a lake or other connecting waters, 
forms a continuous highway over which commerce 
may be directly carried on with other States or with 
foreign countries, such commerce becomes properly 
subjected to the regulation of Congress. ^ 

The same distinction holds good of analogous land 
traffic by railway or canal. Where the State of New 

1 139 U. S.240; 158 U. S. 98. 

2 138 U. S. 78. 

3 14 How. 568; 10 Wall. 557. The test of "navigable waters" in 
the United States is not, as in England, the ebb and flow of the tide, 
but their navigable capacity. 10 Wall. 557. 



124 CONSTITUTIONAL STUDIES. 

York granted to Robert Fulton and his associates, 
by way of bounty for the valuable invention of the 
steamboat, an exclusive right to navigate by steam 
the waters of that State for a series of years, the act 
was held void as concerned all highways of foreign 
and interstate commerce,^ A State may not safely 
authorize the construction of a bridge across a navi- 
gable harbor or river so as to impede foreign and 
interstate commerce, without some sort of Congres- 
sional sanction; 2 and the power of the Federal gov- 
ernment to improve navigable waters is exclusive of 
States, as well as paramount, whenever called into 
exercise.^ A State cannot impose tolls, nor fix a 
tariff for railways, so far as concerns the traffic which 
passes into the State from outside or through the 
State into some other State or country.* In general 
it may be said that no State has the right to lay a tax 
or imposition on interstate or foreign commerce in 
any form, whether by way of duties levied on the 
transportation of the subjects of that commerce, or 
on the receipts derived from that transportation, or 
on the occupation or business of carrying it on, for 
the reason that such taxation is a burden on that 
commerce, and amounts to a meddlesome regulation of 
it.^ Indeed, in all matters of consequence within the 

1 9 Wheat. 1. 

2 13 How. 518; 18 How. 421; 123 U. S. 288; 125 U. S. 1; 154 
U. S. 204. 

3 Congress may create a corporation for erecting such a bridge. 
153 U. S. 525. 

4 118U. S. 557. 

5 See Fuller, C. J., in 135 U. S. 161 ; 136 U. S. 104; 147 U. S. 396. 
Thus, a State cannot levy a special license tax upon peddlers, " drum- 
mers," etc., from other States. 153 U. S. 289. But to require all 
peddlers, etc., to take a license, not discriminating as to those from 
other States, is not unconstitutional. 156 U. S. 296. And see 141 
U. S. 47. Nor is a State debarred from taxing all traffic from one point 
to another point within the State. 145 U. S. 192. And see 155 U, S. 



REGULATION OF COMMERCE. 125 

present Federal power of Congress, its own inaction 
does not excuse States from transgressing in order to 
impose regulations of their own; for the only effect 
of such inaction must be to leave such extra-territorial 
commerce free and untrammelled, and subject to the 
unregulated operation of domestic law.^ 

On the other hand, in applying the extremely 
delicate limitations of this regulating power, States 
are readily permitted by our Federal judiciary to 
impose any tax which is in effect a burden upon local 
internal commerce alone, or even a tax upon com- 
merce coming in from outside, so long as it is a 
burden equally shared by local commerce, and in no 
sense a discrimination upon external commerce. ^ 
And so, too, the regulation of each State's internal 
police is left to the State with equal exclusiveness 
so far as the rule operates only internally, even 
though foreign and interstate commerce may be 
indirectly affected by it.^ Many State enactments 
which justly amount to no more than equal and just 
police and inspection regulations, stand thus the test 
of the constitution ; * and, in fact, that instrument 
expressly recognizes the right of any State to levy 
such impost or duty on imports or exports for the 

688. It is the State discrimination against what goes to or arrives 
from without its confines, that the court here condemns as repugnant, 
A State may levy a tax on its own proportion of railroads, telegraphs, 
etc., which operate in other States. 141 U. S. 18, 40. 

1 91 U. S. 275; 120 U. S. 489. 

2 141 U. S. 18, 40 ; 163 U. S. 1 ; 155 U. S. 688. But taxation upon 
external traffic alone is void. Supra, page 124, 141 U. S. 47. There are 
some very nice distinctions in the later decisions. See 142 U. S. 217. 

2 A State may require returns to be filed. 153 U. S. 446. And see 
154 U. S. 362; 162 U. S. 565. 

* 9 Wall. 41 ; 93 U. S. 99 ; 136 U. S. 313; 163 U. S. 299; 16 Wall. 
36. But nominal inspection acts (as, e, g., for slaughtered meats) which 
apply only to such articles as come from without are void as a discrimi- 
nation against external commerce. 138 IT. S. 78. An oleomargarine 
State statute is an inspection regulation. 155 U. S. 461. 



126 CONSTITUTIONAL STUDIES. 

execution of its own inspection laws as may be abso- 
lutely necessary. 1 Competent State regulations have 
been made concerning liquor traffic, so as to embrace 
imported merchandise v/hose bulk has been broken, 
but not whole packages as they arrive. ^ There are 
valid State laws of long standing, applicable to pilot- 
age and quarantine in local harbors, which Congress 
has not, as probably it might, seen fit to supersede ; 
valid State regulations of local fisheries also and the 
plying of a local carrier trade. ^ In general every 
State establishes, controls, regulates, and improves 
its own highways, whether of land or water traffic; 
besides allowing ferries to be established, railroads 
constructed, and bridges built after a considerable 
discretion ; and yet, where the interests to be imme- 
diately affected are not local, but may prove directly 
injurious to other States or to a foreign country as a 
continuous highway beyond the State, the assent of 
Congress is always desirable if not indispensable, 
since otherwise the United States might interpose 
its superior regulation and control.* 

An important restriction upon the power of Con- 
gress to regulate foreign and interstate commerce, 
as well as upon the power to tax, is found in the 
express provision that " no preference shall be given 
by any regulation of commerce or revenue to the 
ports of one State over those of another; nor shall 

1 Art. I., § 10, second clause. This clause has reference to foreign 
commerce only. 114 U. S. 622 ; 8 Wall. 123. 

2 5 Wall. 462. 

3 12 How. 299; 2 Wall. 450; 118 U. S. 455. But such statutes 
must not discriminate against other States. 118U. S. 90. As to State 
fisheries, see 152 U. S. 133. 

* Supra, page 122 ; 102 U. S. 691 ; 124 U. S. 465 ; 154 U. S. 204. The 
line of Supreme Court decisions on this whole important subject, not 
always distinctly traceable by a layman, need not be here defined more 
closely. The professional reader may consult at greater length, Story, 
Comm., ch. 15, with latest notes by Cooley and others. 



NATURALIZATION AND BANKRUPTCY. 127 

vessels bound to or from one State be obliged to 
enter, clear, or pay duties in another." ^ The jealous 
heed in 1787 that no State should derive substantial 
advantage over another nor receive special favor 
under the reformed Federal government explains this 
clause sufficiently. 

IV. National uniformity (1) in naturalization, and 
(2) on the subject of bankruptcies, is the object pro- 
posed by the next power detailed in the present sec- 
tion; and the corresponding discretion vested in 
Congress is ample. ^ But only in the former respect 
has that discretion been amply exerted ; and in the 
convention which framed our instrument the latter 
grant of power appears to have been an after-thought. 
Under the earlier Confederacy, States retained sole 
power to naturalize, and complications resulted which 
obviously needed reform.^ Seizing at once and occu- 
pying this new province of Federal authority. Con- 
gress has practically excluded the States from its 
exercise, ever since the constitution went into effect; 
while at the same time the law recognizes as still 
existing on the part of our people a certain citizen- 
ship as to the State demanding State allegiance, sub- 
ordinate, however, to citizenship of the United States 
and national allegiance, which continue paramount 
and supreme.^ The naturalization laws of Congress, 
with their peculiar bearing upon the admission of 
foreigners to a full American status, have varied 
somewhat with the changing policy of the majority 
in power ; ^ but a moderate term of residence within 

1 Art. L, § 9, sixth clause. And see 18 How. 421. 

2 Const., Art. I., § 8, fourth clause. 

3 For under Articles, IV. free inbabitants of the Union were ac- 
corded many interstate rights. See supi-a, page 91. 

4 See 16 Wall. 36. 

^ The present and usual term of residence is five years ; and declara- 



128 CONSTITUTIONAL STUDIES. 

the United States and of probation after one's decla- 
ration of intent, suffices usually to confer all privi- 
leges and immunities of a full status such as the 
Federal constitution at this day doubly warrants and 
secures.^ A citizen, in the full legal acceptation of 
that term, may be said to be a member of the civil 
state or community entitled to all its privileges ; ^ and 
there is a clear legal distinction in privilege between 
citizens and resident aliens. In many American States, 
to be sure, some of those distinctions are by this date 
largely abolished, in favor, more especially, of such 
aliens as have by declaring their intention become 
prospective citizens of the Unit^l States.^ But an 
alien is judicially considered, from our national point 
of viev/, as resident in the United States by sufferance 
only, where he takes no steps to become a citizen. 
Congress has full power to expel or exclude all such 
persons, or to exclude some and admit others, or even 
to punish those who attempt to violate its enactments.^ 



tion of intent is followed in two years by a full admission. U. S. Eev. 
Stats., §§ 2165-2174. In 1798 the term Avas raised to fourteen years, 
but that illiberal extension did not long prevail. 

^ See Const., Art. IV., § 2. "All persons born or naturalized in the 
United States and subject to the jurisdiction thereof are citizens of the 
United States and of the State wherein they reside," and no State can 
abridge such privileges and immunities. Ih., 14th Amendment, § 1. 

2 Cooley, Elements, 79. 

^ Thus the common-law disqualification to hold real estate is largely 
removed by State provisions, so that aliens may freely hold, convey, 
and transmit such property. And see Part III., post. American native 
policy in such respects has always been consistent and enlightened. 
One of the charges made against George III. in the Declaration of 
Independence was that of endeavoring " to prevent the population of 
these States " by obstructing the laws for naturalization of foreigners. 

4 130 U. S. 581 ; 142 U. S. 651 ; 149 U. S. 698 ; 150 U. S. 476 (ap- 
plied in the case of imported Chinese laborers). Nor need the courts 
intervene in such a policy ; for Congress may confide enforcement of 
its will to the Executive. All this (which has been but recently de- 
cided) seems to justif}^ as to constitutional legality, the celebrated 
"alien act" of John Adams's Presidency. 



COINAGE, WEIGHTS, AND MEASURES. 129 

The treaty power of the United States enlarges 
Federal control of this whole subject in its diplomatic 
and international bearings. ^ 

As for a uniform bankruptcy system throughout 
the Union, public opinion appears historically to 
have thus far considered the aggrandizement of a 
Federal judiciary at the loss of State local tribunals, 
a disadvantage outweighing its promised advantage 
for any permanent establishment. In special in- 
stances, however, and chiefly for the temporary 
advantage of desperate debtors whose creditors were 
scattered among various States, have bankruptcy 
laws for national and uniform operation been enacted 
by Congress ; nor have such experiments given clear 
satisfaction.'^ While, therefore, this constitutional 
power in the Union remains unexercised. States and 
State courts continue apart their own insolvent 
systems, and give local preferences to creditors as 
State legislatures may determine. 

V. Federal power is next given to coin money, 
regulate the value thereof, and of foreign coin, and 
fix the standard of weights and measures. ^ The 
latter power has always remained dormant in the 
Union, because of the popular indisposition to change 
old customs of traffic ; but for the coinage of money 
the admirable French decimal standard supplanted 

1 Under the former Confederacy the United States was forbidden 
to make treaties of commerce restraining the respective States from 
" imposing such imposts on foreigners as their own people are subjected 
to." What is called "head-money" may now be imposed by the 
United States alone as a tax upon immigration. 112 U. S. 580. 

2 Cf. United States bankruptcy acts, 1800, 1841, and 1867. Perse- 
vering efforts have been latterly made to induce Congress to establish 
a permanent national bankruptcy system, but hitherto success has not 
followed. 

3 Const., Art. I., § 8, fifth clause. 

9 



130 CONSTITUTIONAL STUDIES. 

British pounds, shillings, and pence, in earlier days 
of the old Confederacy. Our American "dollar" 
mode of reckoning, by this time perfected in practice, 
is the best that ever a nation could invent; and exact 
science the world over gains gradual familiarity with 
a like convenient standard for weights and measures. 
Under Articles of Confederation the United States 
derived originally the sole and exclusive authority 
of fixing a standard in both respects; but States 
were not forbidden to coin money, nor was heed 
given to regulating foreign coinage.^ An absolute 
prohibition of coinage or bills of credit to the States 
confirmed the Federal power in this new grant of 
1787; 2 and States were forbidden moreover by that 
later instrument to make anything but gold and silver 
coin a tender in payment of debts. ^ 

Here let us add that as a result of the rulings of 
our supreme tribunal since the Civil War, Congress 
and the United States are to be deemed under no 
such constitutional constraint as the States with 
regard to coinage and a currency. The ills of irre- 
deemable paper money which sovereign fiat invests 
with the deceptive potency of a legal tender for 
debts were so widely felt in the old Revolutionary 
age, both in continental and State currency, that the 
present constitutional prohibition resulted in 1787, — 
universal, one would have thought, so far as Ameri- 
can experience had supplied an argument. And 
such appears to have been the prevalent belief down 
to our Civil War; "bills of credit" having, neverthe- 
less, the restricted sense of a currency intended to 

1 Articles, IX., fourtli clause. " The sole and exclusive right and 
power of regulating tlie alloy and value of coin struck by their own 
authority, or by that of the respective States ; fixing the standard of 
weights and measures throughout the United States." 

2 Const., Art. I., § 10. 

3 Ih. 



FEDERAL MONET POWER. 131 

circulate fully as money, and emanating directly from 
the sovereign as its responsible source and creator. ^ 
But under the tremendous stress of conflict, and 
while the Union was in imminent peril, Congress, by 
the Act of February, 1862, and later statutes, author- 
ized the issue of notes amounting to four hundred 
million dollars, as a currency to be issued on the 
credit of the United States for general circulation, 
and with the inherent quality of a legal tender for 
private debts. After the bloody strife had ended, 
and the Union, vindicated in its national supremacy, 
sought to recuperate its financial strength, the Supreme 
Court of the United States sustained, not without a 
struggle, the full legality of a national paper tender 
currency for peace or war ; concluding at length that 
the express prohibition of bills of credit and a non- 
metallic currency to the several States carried no 
implied prohibition to the United States, and, in short, 
that Congress was unrestrained in its constitutional 
discretion upon the whole subject of a national cur- 
rency standard, whether for making paper money, or 
gold and silver coin, or coin of either metal alone, a 
legal tender. 2 

The constitutionality of a national bank, a doctrine 
which the Supreme Court has constantly maintained 



1 Where a State creates a bank whicli issues notes on its own credit, 
there is no such prohibition, though the State should own all the stock. 
13 How. 12; 11 Pet. 311 ; 1 Schoul. Pers. Prop., § 349. 

2 Por these decisions, which many sound statesmen must deplore in 
the sweeping force of their latest judicial utterance, see 110 U. S. 421 ; 
also 12 Wall. (1871), overruling 8 Wall. 603 (1870); 1 Schoul. Pers. 
Prop. § 345, etc. The " greenback " or paper-money craze which made 
about the time of those decisions an exciting issue in national politics, 
was succeeded years later by a new agitation in favor of silver mono- 
metallism as against the world's gold standard. The Presidential 
election of 1896 seems to have decided the issue unfavorably to those 
who desire to lower the money standard of the Union by legitimizing 
a cheaper substitute. 



132 CONSTITUTIONAL STUDIES. 

in this and other connections, is another issue over 
which American parties have contended at different 
epochs of our national existence.^ 

The next enumerated power, to provide punish- 
ment for counterfeiting the securities and current coin 
of the United States, is an added constitutional grant 
which flows readily from the preceding one.^ 

VI. The power to establish post-offices and post- 
roads was novel only in respect to the latter; for the 
post-office, as conducted on a continental footing, 
originated under the King in colonial times, and Ar- 
ticles of Confederation had simply sanctioned and con- 
tinued a "sole and exclusive right and power " in the 
Union, recognized long before as of great general 
utility.'^ An establishment dating back to ancient 
history and ancient nations, as one for sovereign con- 
venience, proves in our modern times an institution 
conducted equally for popular benefit, though still 
under sovereign direction. Concerning that power 
newly added to establish post-roads, the " Federalist," 
in 1788, described it deprecatingly as "harmless," 
and "perhaps productive of great conveniency, " when 
judiciously managed.^ Considering the customs and 
character of mail transportation when our constitution 



1 See 1 Schoul. Pars. Prop., § 350; 4 Wheat. 316. Instead of the 
single corporate bank with State branches, that odious institution of 
our government in former days, we now have local banks brought 
within the scope of a national system and subjected to a prudent 
national supervision. 

2 Const., Art. I., § 8, sixth clause. States are allowed, in further- 
ance of the national power over the coinage, to punish such crimes in 
their own tribunals. See further as to judiciary, post, ix. 

3 "Establishing and regulating post-ofiices from one State to an- 
other, throughout the United States, and exacting such postage on the 
papers passing through the same as may be requisite to defray the 
expenses of the said office." Articles, IX., fourth clause. 

4 Federalist, No. 42. 



PATENTS AND OOPTEIGHTS. 133 

was adopted, nothing more was probably meant here 
than to empower Congress to designate what local 
roads should be mail routes with an appropriate right 
of way; but no such narrow construction is in this 
day favored; and during the present century many 
have argued from this clause a comprehensive power 
in Congress to make, establish, and repair independent 
national highways, and even to buy up and control 
at discretion all railway and telegraph systems through- 
out the country on behalf of the Union. ^ The power 
to establish post-offices doubtless includes everything 
which may be essential to a complete postal system 
under Federal control and management, including 
the power to protect and carry all mails without local 
hindrance or obstruction. ^ 

VII. The power to grant patents and copyrights. 
" To promote the progress of science and useful arts " 
is the announced purpose of this next grant to Con- 
gress ; and the announced method is " by securing for 
limited times to authors and inventors the exclusive 
right to their respective rights and discoveries."^ 
But an exclusive right to registered trade-marks is 
not comprehended within this power of Congress to 



1 See 158 U. S. 564. Interstate commerce and other stated powers 
are cited in furtherance of this authority. Practical diflSculties arise, 
however, under our constitutional and complex system of government 
when such projects are put in practice. The great " national road " 
which Congress began constructing with enthusiasm in the era follow- 
ing the War of 1812 cost about $6,670,000; but doubts were presently 
raised as to whether Federal power existed for collecting tolls or assess- 
ing local taxes for keeping the grand highway in repair, and finally 
the whole stupendous undertaking was abandoned, and the road was 
donated to the several States in which the various sections lay. 

2 158 U. S. 564. Lottery or other immoral matter may be excluded 
from the mails at Congressional discretion. 96 U. S. 727 ; 143 U. S. 
110, 207. 

^ Const., Art. I., § 8, eighth clause. 



134 CONSTITUTIONAL STUDIES. 

legislate for individual monopoly.^ The utility of 
some national system of patent and copyright protec- 
tion is not questioned, and much of the marvellous 
development of America in authorship and invention, 
adding immensely to the wealth and dignity of the 
whole people, is due to its stimulating influence. 
The mother country had educated America to such a 
system; but the whole subject prior to 1787 was left 
when independence was declared to separate State 
policy and regulation. Popular institutions, it is 
true, do not greatly favor the idea of monopolies to 
individuals for their private benefit, nor has public 
sentiment in the United States yielded readily our 
cheap reprints of foreign books in favor of interna- 
tional copyright protection, ^ such as treaty and 
reciprocal legislation now secure. An effort failed in 
the Convention of 1787 to enlarge the scope of the 
present clause so as to permit of special national 
rewards and immunities to persons engaged in agri- 
culture, manufactures, and commerce. But as con- 
cerns domestic patents and copyrights throughout the 
United States alone, the power here conferred upon 
the Union is ample and effectual as well as popular, 
nor has Congress hesitated to take and keep control 
of the subject. It is wholly discretionary with that 
body to make general or special grants or extensions, 
to either authors or inventors, in this connection.^ 

1 100 U. S. 82. See 111 U. S. 53. 

2 See Act, March 3, 1891, c. 565; 8 Pet. 591. 

^ See at length 1 Schoul. Pers. Prop., §§ 518-541. As a subject of 
judicial exposition the law of Patents and Copyrights is interesting 
and fruitful. Under our present acts of Congress patents for inven- 
tions (based upon novelty and utility) are regularly granted for the 
term of seventeen years. U, S. Pev. Stats., §§ 4883-4936. Copyrights 
are limited to twenty-eight years, with the further right of extension 
in specified instances for fourteen years. States may regulate as an 
exercise of police power the use of patented articles, but they cannot 
semble restrict the sale of patent rights. See 97 U. S, 501. 



PIRACIES AND FELONIES. 135 

VIII. Passing over the Federal pov/er to constitute 
tribunals inferior to tlie Supreme Court, — a topic to 
be considered in a later connection, ^ — we come to 
that of defining and punishing " piracies and felonies 
committed on the high seas and offenses against the 
law of nations. "2 This, too, has its appropriate root 
in a Federal judicial establishment, vested with full 
admiralty jurisdiction; but the grant itself is a 
corollary of those vast powers of war, foreign rela- 
tions, and ocean commerce and navigation which we 
at length find fully committed to the Union by the 
present instrument. Criminal jurisdiction of the 
United States harmonizes with Federal responsibility 
on the high seas; and by "high seas" is meant not 
the ocean only, but all tide -waters along the coast 
below low- water mark.^ Piracy is a well-understood 
offence, by the law of nations, corresponding with 
robbery on land, which also is forcible and not seldom 
accompanied by murder or personal violence. By 
felony is meant at common law a foul crime, more 
heinous than a misdemeanor; and the power of Con- 
gress to define as well as punish piracy, felony, and 
offences against the law of nations, confers unques- 
tionably a flexible discretion over all infamous crimes 
whatever, when perpetrated not on land but the high 
seas.* 

1 Const., Art. I., § 8, ninth clause. See Judiciary, posf, ix. 

2 Const., Art. I., § 8, tenth clause. 

3 5 Wheat. 76, 184. There is divisum imjoerium, as between the 
Union and individual States, over the coast between high and low- 
water mark. As to a guano island, see 137 IT. S. 202. 

4 A crime on the high seas committed upon a foreign ship by a 
foreign subject is not within the jurisdiction of the United States. 
3 Wheat. 610. 

Articles of Confederation (IX., first clause) gave Congress the power 
of " appointing courts for the trial of piracies and felonies committed 
on the high seas ; " but as no clear and efficient judiciary for the 
Union was ordained by those Articles, the grant was of little practical 
gain. 



136 CONSTITUTIONAL STUDIES. 

IX. " To declare war, grant letters of marque and 
reprisal, and make rules concerning captures on land 
and water," is the next power enumerated in order. ^ 
And here in unreserved and unambiguous terms was 
that vast obligation finally placed upon the Union 
which it had exercised by common consent on behalf 
of the States and the whole people from the very 
first initiation of hostile resistance to Great Britain. 
This war power is rounded out fully in the five 
clauses which follow. ^ War with Great Britain, we 
should remark, was hardly a war in the international 
sense, but rather the gradual enlargement of rebellion 
into a revolution. But Articles of Confederation, 
recognizing the permanent necessity of union for 
measures offensive or defensive, gave to the United 
States, as grand representative in all foreign relations, 
" the sole and exclusive power " in Congress assembled 
"of determining on peace and war," except so far 
as States might engage single-handed in war under 
specific emergencies.^ So, too. Congress was invested 
by those Articles with sole and exclusive power of 
granting letters of marque and reprisal in times of 
peace, ^ a hostile proceeding nearly tantamount to 
beginning war, — as also of making, after a feeble 
fashion, its own general rules concerning captures on 

1 Const., Art. I,, § 8, eleventh clause. See corresponding prohibi- 
tion on States, § 10, third clause, post, page 155. 

2 Const., Art. I., § 8, twelfth through sixteenth clauses, to be con- 
sidered in due order. 

3 Articles, IX., excepting VI. That exception resembled in the 
main that of our present Const., Art. I., § 10. 

* Articles, IX., first clause. Under the Confederation, States might, 
under Congressional regulation, grant letters of marque and reprisal 
against the public enemy in time of war (Articles, VI., fifth clause) ; 
but that right was wholly taken away by the present constitution. 
(Const., Art. I., § 10.) Under the Confederation, a State might, if 
infested by pirates, fit out vessels of war against them for the occasion, 
or at least until Congress should determine otherwise. Articles, VI,, 
fiftb clause. 



FEDERAL WAR POWER. 137 

land or water. ^ The later constitution allows Con- 
gress to declare war or grant letters of marque and 
reprisal by the simple majority of a quorum or by 
two-thirds over a Presidential veto, after the usual 
course of legislation ; but under the earlier Confedera- 
tion no such hostile step could be taken, without the 
affirmative consent in Congress of nine out of the 
thirteen State delegations. ^ On the other hand, the 
power of our Confederate Congress embraced clearly 
the determination of both war and peace, while that 
of the Congress of our constitution is in expression 
confined to war alone, since the full treaty-making 
power is lodged by the latter instrument (which 
makes no mention of declaring peace at all) with 
that new branch of government, the Executive, sub- 
ject to a two-thirds ratification in the Senate.^ Such, 
indeed, is executive discretion, as ordained in 1787 
for war and diplomatic dealings, that the initiation 
or prosecution of foreign war becomes a sort of co- 
ordinate trust to which the concurrence of President 
and Congress is essential for preventing public dis- 
aster and disgrace. As imposing a salutary check 
upon precipitate folly and unrighteousness in either 
branch of government, this is perhaps of real national 
advantage. For if President and Congress are at 
issue upon the desirableness of immediate war with 
any foreign power, each may thwart the other unless 
public sentiment irresistibly forces a joint decision. 

1 There was no potent Eederal judiciary under the Confederation ; 
yet Congress was permitted in express terms, more verbose than in our 
present constitution, to establish rules for deciding " what captures on 
land and water shall be legal/' and in what manner prizes taken by 
land or naval forces in the service of the United States should be di- 
vided ; and had also power for " establishing courts for receiving and 
determining finally appeals in all cases of captures." Articles, IX., 
first clause. 

2 Supra, page 88. 

3 Const., Art. II., § 2. 



138 CONSTITUTIONAL STUDIES. 

In Great Britain, the Crown has the exclusive 
power to declare war; and nsually the earlier prac- 
tice of nations has regarded the determination of war 
or peace, like the prosecution of hostile or pacific 
foreign intercourse, an executive function. Such is 
not American precedent; though beginning with 
entire Congressional sovereignty in. things national, 
our people transferred a large share of that sover- 
eignty to the Executive, when other departments of 
government were added to the Legislature. Presi- \ 
dent Polk in 1846, and President Lincoln in 1861, | 
gave proof that though the power to declare formal j 
hostilities may reside in Congress and the legislative \ 
branch, the opportunity to lead up to war is inci- I 
dental rather to executive policy. President Madison, I 
in 1812, yielded perhaps to the passionate eagerness 
of young leaders in Congress by sanctioning the 
declaration of a second war against Great Britain, 
after having first exhausted all honorable means of 
adjustment with that country. But in all instances 
hitherto a President of the United States has initiated 
war measures, and his message to Congress recom- 
mending hostilities has preceded the concurrent 
action of that body and roused the popular passion. ^ 
Despatch and secrecy, no less than open energy, are | 
found ingredients in the successful conduct of a war, I 
and only an executive can manage and negotiate in | 
detail, or be clearly cognizant of the real drift of | 
foreign relations. Congress holds the purse-strings, | 
to be sure, and is capable of regulating considerably 
by favorable or unfavorable legislation. Congress 
may even by impeachment install the next Executive 
in succession; but it is the President after all who 
rightfully expends the money, selects all subordi- 
nates, directs military operations, and arranges a 
settlement. Concurrence of Executive and Congress \ 



FEDERAL WAR POWER. 139 

is therefore indispensable in war measures, sooner or 
later, to save from disaster. 

War is said to be "that state in which a nation 
prosecutes its right by force ; " ^ a definition fair 
enough if we further allow that one or another of 
two belligerents is likely to be in the wrong, while 
the only arbitrament of right is violence with a 
mutual appeal to God and mankind to witness and 
aid the vindication. War, or at least a state of 
hostilities, may practically exist in advance of its 
declaration and announcement by Congress and legis- 
lative provision, through invasion of some foreign 
power, or because of armed insurrection on a scale 
which menaces the safety of the Union, whereupon 
the President as commander-in-chief of the army and 
navy may at once recognize and repel as befits the 
emergency.^ When war exists, this government pos- 
sesses and may exercise all those vast, extreme, and 
often despotic powers that any belligerent sovereignty 
wields under the rules of war currently recognized 
among civilized nations ; among which are powers to 
acquire territory either by conquest or treaty, to 
seize and confiscate an enemy's property on sea or 
land, to create military commissions, and to establish 
provisional military governments and provisional 
courts in each conquered jurisdiction. ^ But where 
the State civil courts are discharging their usual 
functions, and are capable of enforcing the usual 
authority, the government of this Union cannot, as 

1 2 Black. 635, 666. 

2 2 Black. 635, 668. Congress and the President in declaring the 
Mexican War in 1 846 put it artfully as already existing by the act of 
Mexico. In 1861 the President pursued his chosen course in dealing 
with armed rebellion at the south for months before Congress could 
convene and legalize hostilities. In 1798 Congress authorized partial 
hostilities against France. 

3 9 Wall. 129. 



140 CONSTITUTIONAL STUDIES. 

to its own civil inhabitants who dwell outside the 
area of active warlike operations, displace them by 
courts-martial.^ 

As for making and declaring peace, the power, as 
already observed, pertains no longer to Congress, 
but is lodged for negotiation and conclusion in the 
President. But every treaty with a foreign govern- 
ment requires the concurrence of two-thirds of our 
Senate ; ^ and the House of Representatives has some- 
j times claimed, not without reason, that if a money 
? appropriation or the relinquishment of public terri- 
i tory should be involved in any treaty to end or 
\ prevent war, its own practical concurrence by a 
i majority should not be ignored.^ 

X. The next power stated, " to raise and support 
armies," is in direct furtherance of the war power 
conferred in the preceding clause. More than this, 
the Federal power to raise and support armies is not 
only indispensable to foreign war or the suppression 
of domestic insurrection, but a needful precaution 
for preserving peace at all times. " Join or die " was 
the motto of the Revolution, not for those times 
alone ; and the league or combination of force under 
union and united direction has been fundamental in 
all military operations on this continent from the first 
era of colonial settlement.* But under Articles of 
Confederation and throughout the conduct of our 
war for independence, the Union was much hampered 
by the restrictions which State jealousy had placed. 
The Continental Congress raised its continental 
army; not immediately, however, but by making 

1 4 Wall. 2. 2 Const., Art II., § 2. 

^ Fortunately the United States has waged no Avar thus far which 
ended in the relinquishment of public territory or the payment of an 
indemnity to the adversar3^ 

* See New England Confederation, supra, page 73. 



FEDERAL ARMY AND NA VT. 141 

requisitions on the various States from time to time 
for their several quotas, and this only by the vote of 
nine States in that body.^ For past experience had 
given these rebellious colonists great dread of a 
standing army. Under our constitution we have by 
usage (1) the regular army raised and maintained by 
and for the Union, but small in numbers when on a 
peace footing; (2) in great emergencies of war or 
insurrection. State volunteers, with quotas still 
assigned by the President, where the States recruit 
and organize, making State pride a thrilling incentive 
to patriotism. 2 In either case the troops are sworn 
into the service of the United States for active duty, 
and serve accordingly under the terms of their enlist- 
ment, though the regimental officers of State volun- 
teers are commissioned by the State, much the same 
as in the days of the Confederacy.^ Congress may 
in times of danger empower a draft upon the able- 
bodied men of the Union when volunteering fails.* 
But the main reliance of the Union for peace, and 
the lesser outbreaks of war or rebellion, must be, as 
hitherto, its own regular army, immediately respon- 
sible, kept in constant training and discipline, offi- 
cered throughout by the Federal Executive, and 
Tjnder direction of the war department stationed in 
detachments to guard our national frontiers and 
territories, garrison the forts, and as a military police 
protect the public property and reservations at all 
needful points. 

Fitly environed for political leadership in North 

1 Articles, VII., IX., fifth clause. 

2 State volunteers with State quotas were much relied upon in 1812 
and 1861. 

^ See supra, pages 90, 91. 

4 Men were drafted for the Civil War in 1863-1864. A draft was 
seriously proposed in 1814, but peace came suddenly, and the occasiou 
passed. 



142 CONSTITUTIONAL STUDIES. 

America, relieved from all heavy anxieties of the 
European balance of power, and easily first among 
nations of the new world, the United States has 
fortunately required thus far but a small standing 
army for ordinary times. And to guard against the 
possible abuses of a permanent establishment, our 
present constitution expressly limits all army appro- 
priations to the term of two years. ^ In a mre instance 
or two the House of Representatives has thus exerted 
its control of the military purse to check dangerous 
tendencies. 2 

XI. "To provide and maintain a navy" is the 
next and associated power. '"^ Not only for active 
war, for the defence of ports and harbors and opera- 
tions on navigable waters conjointly with our land 
forces, but for the constant protection of the ocean 
highways and the safeguard of American commerce, 
and, moreover, as an imposing means of gaining con- 
fidence and respect for the American name and flag 
in distant ports, the navy of the United States was 
broadly founded. In Revolutionary times some estab- 
lishment of the sort existed ; but Confederate author- 
ity was so hemmed in by State emulation in this 
respect that except for privateering, very little prow- 
ess by water redounded to the glory of the Union.* 

1 Const., Art. I., § 8, twelfth clause. 

2 As in 1856, when military force had been used to coerce the 
free settlers in Kansas Territory. 5 Schoul. United States, 348. This 
stoppage of supplies was an old expedient of the British House of 
Commons. 

^ Const., Art. I. § 8, thirteenth clause. 

^ The Union was authorized "to build and equip a navy," and to 
appoint " all the officers of the naval forces." Articles, IX., fourth 
and fifth clauses. The assent of nine States was needful, however, for 
agreeing upon the naval vessels to be built, or the naval forces to be 
raised, or for the appointment of a naval commander-in-chief. Arti- 
cles, IX,, sixth clause. 



FEDERAL ARMY AND NA VY. 143 

Army and navy were forces recognized together for the 
Confederate prosecution of war, yet as States might 
equip their own navies in war times for their own com- 
merce, concentration was not easy ; ^ and, furthermore, 
whether for war or peace, the usefuhiess of a Federal 
navy was quite limited. The convention of 1787 
readily agreed to enlarge the existing Federal power; 
but objection was made in some of the State conven- 
tions that ratified. Under this constitution, the 
valor of our infant navy in conflicts with the Barbary 
Pirate States and during the War of 1812 exalted it 
to a proud renown which has never since been tar- 
nished. Yet a naval establishment is always costly, 
and in the long intervals of peace shipbuilding 
changes its methods, and expensive hulks decay and 
become worthless. It has been the constant rule of 
our more perfect Union to maintain simply a regular 
navy manned and officered for regular service, but in 
great emergencies volunteer officers have been added 
to the list of those in regular rank.^ 

Congress may farther " make rules for the govern- 
ment and regulation of the land and naval forces; "^ 
a power by way of supplement to the two last enu- 
merated. Though not specified in the original draft 
of our constitution, the convention of 1787 readily 
admitted the power as incidental and explanatory. 
Such rules must not be inconsistent with a President's 
due authority as commander-in-chief of the army and 
navy.* Congress has by law forbidden such former 

1 The real prohibition of State navies was for times of peace, and 
then only so as to limit each State to such a number of war vessels as 
Congress should deem necessary for the State defense or trade. Arti- 
cles, VI., fourth clause. 

2 Enlistments are thus far voluntary. Probably a fair and impartial 
draft for the navy might be ordered whenever necessary ; but the for- 
mer English mode of impressments was never permitted. 

^ Const., Art. I., § 8, fourteenth clause. 
4 See Executive, post. 



144 CONSTITUTIONAL STUDIES. 

cruelties as flogging in the navy; yet for the most 
part, and subject to occasional enactments of this 
sort, the discipline and regulation of both army and 
navy belong to the President, acting through the 
respective Secretaries of War and the Navy. All 
crimes committed in strict military jurisdictions by 
land, or on board naval vessels, are punished exclu- 
sively by the United States, and usually as to men in 
service, by military or naval courts-martial.^ 

XII. " To provide for calling forth the militia to 
execute the laws of the Union, suppress insurrections, 
and repel invasions " is the next comprehensive power 
given for the self-maintenance of the Union by 
physical force. Reliance mainly upon a trained and 
well-regulated militia, composed of the mass of civil 
inhabitants as volunteers primarily and not conscripts, 
in preference to any standing army of professional 
soldiers, has been fundamental in the States of free 
America as with those British-born ancestors who 
twice dethroned the Stuarts. ^ Articles of Confedera- 
tion plainly recognize such a principle ; ^ nor was the 
constitution of 1787 deemed satisfactory to the people 
until made quite explicit in upholding that doctrine.^ 
The constitutional object of calling out the militia is 
seen to be not for offensive war, but for instant 

1 Supra, page 1 13. So far as Union authorit}'- miglit actually extend 
in such matters, the Articles of Confederation expressly empowered 
" the United States in Congress assembled " to make rules for the gov- 
ernment and regulation of its land and naval forces, and directing their 
operations. Articles, IX., fourth clause. 

2 See supra, page 33. 

3 While the several States are to maintain no body of forces in 
time of peace except for garrisoning the local forts, "every State 
shall always keep up a well-regulated and disciplined militia, suffi- 
ciently armed and accoutred," besides a good supply of military stores. 
Articles, VI., fourth clause. 

* See Amendments II. and III. (1789). 



POWER OVER MILITIA, 145 

defence against sudden danger from without, and 
still more readily for putting down internal outbreaks. 
It is in the latter sense, and when civil authorities 
and the courts were found powerless or remiss in 
maintaining order and national obedience within State 
limits, that both in 1794 and 1861 a President of the 
Union called out the militia of other States for a few 
months to enter the disaffected region in arms, assign- 
ing to each State its proper quota, and primarily 
confiding in State executives to put the local troops 
in motion. And it is noticeable that in each instance 
a regular United States army was less available for 
quelling disturbances ; also that Congress was not in, 
actual session, and prompt executive action became 
needful under existing laws in advance of particular 
legislation for raising and enlisting troops on a long 
term. Regulars have served alone in some other 
outbreaks, like that of the Mormons of Utah Territory 
in 1857; but the power thus inherent in the Union 
dispenses with a large regular army for ordinary times 
while enabling the Union to fulfil its fundamental 
guaranty of orderly Republican government.^ 

Congress may also "provide for organizing, arm- 
ing, and disciplining the militia, and for governing 
such part of them as may be employed in the service 
of the United States, reserving to the States respec- 
tively the appointment of the officers, and the author- 
ity of training the militia according to the discipline 
prescribed by Congress." ^ States felt considerable 
alarm over the power vested in the Federal govern- 
ment by this and the preceding clause. They feared 
that the Union would weaken each local militia for 

1 See "guaranty clause," Art. IV., § 4. Congress under the Con- 
federation was notoriously deficient iu power to summon the State 
militia, as the Shays Rebellion manifested. 

2 Const., Art. I., § 8, sixteenth clause. 

10 



146 CONSTITUTIONAL STUDIES. 

strengthening the regular army ; and hence'".<ithe reser- 
vation here asserted, as well as the jealous amend- 
ments of 1789.^ Congress has not been much 
disposed thus far to prescribe for the militia of the 
States a national uniform "discipline," as here per- 
mitted, still less to encroach upon the important 
reserved right of each State to appoint officers and 
attend to the training. But by this era it i^ well 
settled that when local bodies of militia (though 
State forces originally) are called into the service of 
the United States, they are subject not only to the 
orders of the President as commander-in-chief, but 
also to those of any officer of superior rank who may 
under the President's authority be placed over them 
and their State commissioned officers. So, too, it is 
settled that when Congress by statute gives the Presi- 
dent discretionary authority to call forth the militia 
in time of peril, this makes him the exclusive judge 
as to when or whether the exigency has arisen, so 
that neither State executives nor militia officers 
can question it.^ 

XIII. Exclusive Federal jurisdiction over Federal 
places is the object of the last specific power here 
enumerated on behalf of Congress,^ Federal juris- 
diction is for the most part superposed upon that of 
States, except for the territorial domain of the Union, 
where statehood is as yet inchoate. But Federal 
government requires for its proper exercise some local 
reservations over which its own peculiar jurisdiction 
and authority shall be sole and indisputable. Hence, 

1 Amendments II. and III. Tlie States have always assurance 
against centralized despotism in their representation in Congress. 

'^ 7 How. 1 ; 5 Wheat. 1. During the War of 1812, and again in 
1861, some State governors who were unwilling to furnish quotas took 
issue with the President on this point of an emergency. 

2 Const., Art. I., § 8, seventeenth clause. 



FEDERAL SITES RESERVED. 147 

first of all, a district (not exceeding ten miles square) 
was to be set off as " the seat of the Government of 
the United States." For 1783 had not been forgot- 
ten, when a handful of mutineers from the continental 
army forced Congress from Philadelphia, the State 
Executive appearing reluctant to interpose his protec- 
tion. ^ For the first few years of our constitutional 
government New York and then Philadelphia served 
as temporary headquarters ; but as soon as a district 
had been chosen and improved for a Federal capital, 
the permanent abode on the Potomac became a place 
of exclusive Federal legislation and authority, and 
as time showed, the essential citadel and rallying- 
point of loyalty to the Union. ^ A like exclusive 
authority is vested in Congress " over all places pur- 
chased by the consent of the Legislature of the State 
in which the same shall be, for the erection of forts, 
magazines, arsenals, dockyards, and other needful 
buildings." ^ 

1 1 Schoul. United States, 22. See 146 U. S. 325. 

2 Of the Federal district on both sides of the Potomac, ceded by the 
respective States of Maryland and Virginia for a seat of government, 
and first occupied by Congress in 1800, that portion south of the Po- 
tomac was retroceded later to Virginia. Washington City now fairly 
occupies the whole area remaining. Here the jurisdiction of Congress 
is full and unlimited, both in a political and municipal sense. 147 U. S. 
282. 

3 Const., Art. I., § 8, seventeenth clause. To preserve the forts and 
other property belonging to the whole Union, located on land which 
had been purchased and paid for by the general government, was the 
plain issue which first in 1861 united the loyal population under Presi- 
dent Lincoln against States in rebellion. 



VII. 



FEDERAL CONSTITUTION ANALYZED; FEDERAL 
AND STATE PROHIBITIONS. 

Before passing from tlie Federal Legislature, our 
constitution enumerates sundry proliibitions which 
limit or are correlative with the important powers 
just recited. These prohibitions are either (1) upon 
Congress and the United States; or (2) upon the 
individual States. 

I. Prohibitions upon Congress and the United 
States occupy the ninth section of Article I. Next 
after a constraint long since obsolete, but honored by 
Congress while it lasted,^ comes a prohibition against 
suspending the writ of habeas corpus, "unless when 
in cases of rebellion or invasion the public safety may 
require it."^ Habeas corpus (recognized but not 
originating under Charles II. in the celebrated Act 
of 1679) was a right highly prized by English free- 
men from the earliest known era of the common law; 
and under such a writ, issued as of individual right 
by the common-law courts, a person who had been 
deprived of liberty was discharged from illegal im- 
prisonment. Maxims denouncing all arbitrary sus- 

1 Const., Art. I., § 9, first clause. This constraint upon slave-trade 
prohibition until 1808 (which Art. V. undertakes to rivet closer) ad- 
mitted expressly of legislative discouragement in the meantime by a 
poll tax on the importation of slaves ; yet Congress forbore from all 
such action. When the time (1808) arrived, foreign slave-trade was 
formally abolished. Here, as elsewhere, our constitution wisely avoids 
using the word "slave " at all. Cf. page 105, 

2 Const., Art. I., § 9, second clause. 



FEDERAL PROHIBITIONS. 149 

pension of laws are to be found both in tlie English 
bill of rights and the Revolutionary declarations of 
our old thirteen States,^ suspension by a monarch 
being chiefly obnoxious. Here we perceive arbitrary 
suspension equally forbidden in sense to Executive 
and Congress; though not without qualification, as 
above expressed, for great exigencies of public danger 
from within or without, when suspension has always 
been customary to a certain extent. If one complain- 
ing of unlawful arrest and detention sues out this 
writ, he is brought at once into court for a summary 
examination of the facts, and the court orders his 
discharge if the detention was unlawful. Suspension 
of the writ of habeas corpus^ it has well been said, is 
a suspension of Magna Charta, and nothing but a 
great national emergency can justify or excuse it.^ 
The power to suspend in permitted exigencies vests 
naturally in Congress; but whether the President 
may not himself suspend at discretion in a constitu- 
tional emergency, especially if Congress be not in 
session and time presses, is open to fair discussion.^ 

" No bill of attainder or ex post facto law shall be 
passed " is a prohibition to the Union borrowed from 
earlier State constitutions and State declarations of 
right ; * and this prohibition is expressly extended to 

1 Supra, page 32. 

2 May, Const. Hist., cli. 11 ; Cooley, Elements, 300. 

^ During the Civil War, 1861-65, President Lincoln claimed and re- 
peatedly exercised the right to suspend the writ of habeas corpus ; and 
this against judicial protest, although the Supreme Court seems never 
to have passed directly upon that question. Taney, 246. Even after 
Congress had partially defined the limits of existing suspension he 
suspended to a greater extent, on the claim of a still greater exigency 
which the conflict had developed. It would appear that over any juris- 
diction which an executive has properly declared subject to martial 
law, the writ of habeas corpus is as a rule properly suspended. 7 
How. 1. 

4 Const., Art, I., § 9, third clause. Supra, pages 36-38, Maryland. 



150 CONSTITUTIONAL STUDIES. 

all States by a later section.^ The clause has exclu- 
sive reference to a sort of criminal legislation justly 
abhorrent to liberty, at the same time that retrospec- 
tive civil enactments by a legislature are impolitic 
and deserve disfavor.^ Among tax prohibitions upon 
Congress already mentioned as qualifying the Federal 
power, 3 we find the rule firmly buttressed that every 
capitation or other direct tax must be laid proportion- 
ately to a census.* "No money," proceeds the text, 
"shall be drawn from the Treasury but in^ conse- 
quence of appropriations made by law ; and a regular 
statement and account of the receipts and expendi- 
tures of all public money shall be published from 
time to time."^ And finally, to confirm the equal 
rights of mankind upon which the American govern- 
ment and American society were henceforth to rest, 
"no title of nobility shall be granted by the United 
States ; and no person holding any office of profit or 
trust under them shall, without the consent of Con- 
gress, accept of any present, emolument, office, or 
title of any kind whatever, from any king, prince, or 
foreign State." ^ States are forbidden, besides, to 
grant any title of nobility.^ 

^ Const,, Art. L, § 10, first clause. 

2 See 107 U. S. 221 ; 152 U. S. 377. Any law is ex post facto which 
is enacted after the offence was committed, and which in relation to 
the crime or its consequences alters the situation of the accused to his 
disadvantage. 

3 Const., Art. I., § 10, fourth, fifth, and sixth clauses; supra, page 
119. 

* Ih., fourth clause. This reiteration comes in special connection 
with the first clause. See Article V. 

s Ih., seventh clause. This admirable and business-like provision 
explains its own purpose. 

^ Const., Art. I., § 9, eighth clause. States, as Maryland, for in- 
stance, are seen to have formulated already for themselves the prohihi- 



' Const., Art. I., § 10, first clause. And see prohibition to States 
in Articles of Confederation. 



PROHIBITIONS UPON STATES, 151 

II. The prohibitions upon the States respectively 
are found in section 10, which follows. Some of 
these prohibitions we have already incidentally men- 
tioned; as against granting letters of marque and 
reprisal, coining money, emitting bills of credit, and 
making anything but gold and silver coin a tender 
in payment of debts ; ^ constraints, which were now 
laid chiefly for giving the Union its free and untram- 
melled scope on such national subjects. As for bills 
of attainder, ex post facto laws, or the grant of titles 
of nobility, always undesirable, express prohibition was 
enjoined equally upon States and the Federal Union. ^ 
And to all this was added, that "no State shall 
enter into any treaty, alliance, or confederation," a 
prohibition absolute ; ^ a similar prohibition having 
applied to States under the Articles of Confederation, 
though less concisely and with the soothing qualifica- 
tion that Congress might interpose its consent and 
give validity.* The omission of all such qualification 
from the new and more peremptory instrument is 
quite significant.^ 

tion of " titles of nobility." Supra, page 38. But tins clause comes 
more directly from tlie broadly expressed Articles of Confederation. 
" Nor sball any person holding any office of profit or trust under the 
United States, or any of them, accept of any present, emolument, office, 
or title of any kind whatever from any king, prince, or foreign State ; 
nor shall the United States in Congress assembled, or any of them^, 
grant any title of nobility." Articles, VI., first clause. 

1 Supra, pages 130, 136. 

2 Supra, page 149. Const., Art. I., § 10, first clause. 

3 Const., Art. I., § 10, first clause. 

* " No State, without the consent of the United States, in Congress 
assembled, shall send any embassy to, or receive any embassy from, or 
enter into any conference, agreement, alliance, or treaty with any king, 
prince, or State." Articles, VI., first clause. " No two or more States 
shall enter into any treaty, confederation, or alliance whatever between 
them without the consent of the United States, in Congress assembled, 
specifying accurately the purposes for which the same is to be entered 
into, and how long it shall continue." Articles, VI., second clause. 

5 The legal bearing of these phrases and their historical alteration, 



152 CONSTITUTIONAL STUDIES, 

Another phrase in this tenth section ordains in 
effect that no State shall pass any law "impairing 
the obligation of contracts."^ The underlying prin- 
ciple of such an interdict is salutary, and no good 
reason can be given for forbidding States alone, and 
not the Federal government as well, except the pos- 
sible inadvertence of the Philadelphia convention.^ 
Madison, the best-informed member of that body, stig- 
matizes bills of attainder, ex post facto laws, and laws 
which impair the obligation of contracts as equally 
" contrary to the first principles of the social compact 
and to every principle of sound legislation."^ And 
he further intimates, that while States had already 
begun prohibiting the two former in their constitu- 
tions, and while all three prohibitions were within 
the true spirit and scope of State fundaments, a dis- 
position for sudden changes and interference with 
contracts had become so manifest of late in some 
State legislatures that it was high time to interpose 
this new constitutional bulwark on behalf of private 
rights.^ A century has justified the Avisdom of that 
action, for few clauses in the present constitution 
have given rise to more constant and vehement con- 
troversy in the courts. To the long array of judicial 
precedents on this topic the reader must turn for 
details ; a leading case in the Supreme Court on final 
appeal, that of Dartmouth College, establishing long 
ago that this prohibition applies to the State Legisla- 
ture itself, under any unqualified grant or charter by 

against the attempted Southern Confederacy of 1861, appears never to 
have received the attention it deserved for constitutional discussion. 

1 Const., Art. I., § 10, first clause. 

^ So, too, as to " bills of credit," noted supra. See 110 U. S. 633. 

3 Federalist, No. 44. 

^ lb. Federalist, No. 1, also alludes to contemporary State laws in 
violation of private contracts, which amounted to an aggression on the 
rights of other States whose citizens were injured by them. 



PROHIBITIONS UPON STATES. 153 

the State which amounts in effect to a contract with 
private individuals.^ Legal and not moral obligation 
is here intended; and the obligation of a contract 
which States must not impair is the legal means of 
enforcing that contract, and of compelling the parties 
to fulfil it. Hence, whatever State legislation may 
lessen the efficacy of these means of enforcement 
impairs the obligation. ^ But a law which gives 
validity to what was a void contract does not essen- 
tially impair its obligation, unless, at least, other 
vested rights must suffer in consequence ; ^ nor is a 
State to be thus debarred from forbidding by statute 
certain kinds of contracts, provided that its enact- 
ment be purely prospective in operation.* 

The two remaining clauses under present considera- 
tion leave each constitutional prohibition upon States 
optional with Congress, as under the old Confederacy. 
Unless, therefore, Congress consents, no State shall 
"lay any imposts or duties on imports or exports, 
except what may be absolutely necessary for execut- 
ing its inspection laws ; and the net produce of all 
duties and imposts, laid by any State on imports or 
exports, shall be for the use of the Treasury of the 

1 4 Wheat. 518. Constraints upon local legislation under a State 
constitution are here material ; nor can essential sovereign powers be 
bargained away by a legislature. For a learned summary of the de- 
cisions see Cooley, Elements, 311-327 ; Story, § 1385, et seq. Executory 
and executed contracts are equally within the protection of this clause 
of the constitution. But the contract must be a binding one at law 
and founded upon a legal consideration. 

It is State constitutions or legislative acts which this clause con- 
strains, not mere municipal ordinances or judicial decisions. 163 U. S. 
273 ; 146 U. S. 258. 

2 16 WaU. 314. 

3 Story, § 1385. As to exempting privileged persons from taxation, 
see 146 U. S. 279. 

* As, for instance, forbidding private contracts to be hereafter made 
payable specifically in gold. A State may suitably reserve the right 
to repeal or alter any charter it grants. 151 U. S. 556. 



154 CONSTITUTIONAL STUDIES. 

United States ; and all such laws shall be subject to 
the revision and control of the Congress." Thus the 
permissive levy of customs duties to a State, hence- 
forth peculiarly a national resource, was, even for an 
extreme State purpose, closely strained. ^ Nor was a 
State without the consent of Congress to lay hence- 
forth "any duty of tonnage."^ 

Again, no State shall without the consent of 
Congress enter into any agreement or compact with 
another State. ^ The lesser dread of such compacts 
(for under this composite government States may 
still make compacts), in comparison with any con- 
federation or alliance,* supplies the permissive assent 
of the Union through Congress. Compacts and 
agreements, those of contiguous States, for instance, 
upon some mutual use of common waters or a span- 
ning bridge, or in disputed boundaries, have fre- 
quently been made since, as before, the adoption of 
this constitution and the consent of Congress removes 
all national impediment. That consent need not be 
express unless in some extreme case affecting Federal 
sovereignty, but is inferable from indirect Federal 
legislation which imports a sanction.^ This same 
qualified prohibition upon the States applies to the 
less probable contingency of some State agreement or 
compact with a foreign power, as distinct from a 
treaty.^ 

Finally, no State shall, without the consent of 
Congress, "keep troops or ships of war in time of 

1 Const., Art. I., § 10, second clause. Cf. supra, page 118. 

2 Ih., third clause. State interference by its own impost system, 
with the attempted stipulations of Federal treaties negotiated in 
Europe, was an evil partly guarded against in Articles of Confedera- 
tion, VI., third clause. 

3 Const., Art. I., § 10, 3. 
^ Cf. supra, page 151. 

5 11 Wall. 39. See also 148 U. S. 503. 

6 Const., Art. I., § 10, 3. 



PROHIBITIONS UPON STATES. 155 

peace ; " nor " engage in war unless actually invaded 
or in such imminent danger as will not admit of 
delay." ^ The former prohibition favors one regular 
army and navy establishment for the whole Union, 
as since maintained ; the reason of the latter, with its 
contingent exception, is obvious. Karely in these 
days of land and submarine telegraph and rapid 
transit would a State find itself so suddenly in the 
throes of a foreign war as to be compelled to fight 
before the Federal government could come to its aid; 
and should such an emergency ever arise, the special 
consent of Congress would doubtless be found super- 
fluous. The suggestion of all this came from the 
more primitive Articles of Confederation. ^ 

Besides the distinction among express State prohi- 
bitions already noticed — prohibitions which of course 
bear upon all States alike — we should observe that 
some of them concern delicate functions of public 
sovereignty, while others affect rather the private 
rights of the individual. Other prohibitions ingenuity 
might add which the nature and practical adjustment 
of our composite government naturally imply; and 
as for powers, it would have been needless for the 
constitution to confer any powers expressly on the 
States, since, as a recent writer ^ reminds us, they or 
the people retain all powers not actually taken from 
them. 

1 Const., Art. L, § 10, 3. 

2 See Articles, VI., 5. No State shall engage in any war without 
the consent of the United States, in Congress assembled, unless such 
State be actually invaded by enemies, or shall have received certain 
advice of Indian invasion, and the danger is too imminent to admit of 
a delay to consult Congress. And see ih. as to a State infested by 
pirates. As to keeping up State war vessels or a State army in time 
of peace, see Articles, VI., 4. 

2 Mr. James Bryce, American Commonwealth. 



VIII. 

FEDERAL CONSTITUTION ANALYZED; THE 
EXECUTIVE. 

The GMef Executive of this Federal constitution 
was a new creation. His prototype is seen in the 
State Governor enlarged and adapted to high inter- 
course with European kings and potentates, by bor- 
rowing from the dignified lustre of Holland and 
Great Britain. For the President of these United 
States was to be a ruler, supreme in authority before 
mankind abroad and at home beyond any single State 
Executive, guardian of the national flag and resources 
through peace and war, and fit conductor of our 
common destinies. All the more disposed was the 
convention of 1787 to give stability and strength to 
this new chief magistrate, when the Legislature as 
finally settled was found to have broadened the old 
Continental Congress so greatly that a powerful 
balance became needful ; and when, too, it was con- 
ceded that the first person to occupy this exalted 
station would be the safest and worthiest of all 
administrators, and the peer in liis republican sim- 
plicity of any monarch of the old world. 

The powers lodged, therefore, in the President of 
the United States by our Federal constitution were 
vast and energetic, and such as befitted a relation 
where Congressional encroachment might need a 
strong constraining power. No duality, no directory, 
was set up for this Federal department, such as some 
leading States in their dread of a monarch were then 



THE FEDERAL EXECUTIVE. 157 

attempting. There was not eyen a cabinet added in 
the sense of a controlling ministry. ^ The President 
was himself the sufficient chief magistrate of the 
Union, empowered to take confidential or public 
advice at his will, and to summon or change at 
pleasure his chief department heads like all other 
high Federal officials, subject to confirmation by the 
Senate. A wise Executive will doubtless unify his 
administration and secure efficient action; but his 
own supreme discretion is, after all, the rule of action, 
aside from the constitutional direction of Congress; 
and Presidents have successfully pursued that rule 
at times, disregarding Congressional clamor, and 
removing summarily a department secretary who 
opposed, while rejecting the collective advice of a 
cabinet. 2 

Our Chief Executive has his own responsibility to 
the people, independently as to tests from that of 
either branch of Congress; and Presidents have 
remained in office with their chosen chief counsellors 
while both Houses of Congress surged in opposition. 
This is very different from that Parliamentary direc- 
tion of affairs by which ministries are displaced when 
the Legislature votes in opposition. Representative 
government by the people is here of another sort. 
The Presidential term itself is limited to four years, 
and midway comes the opportunity to strengthen, 
weaken, or secure him in his policy. Hamilton in 

1 No idea of " cabinet " or " council " deliberation is intimated in 
this constitution; but only a permission given to the President to 
" require the opinion in writing " of the principal officer in each execu- 
tive department upon any subject relating to his own official duties. 
Const., Art. II., § 2. Our present Cabinet meetings with Cabinet vot- 
ing originated in a chosen usage of President Washington, which most 
of his successors have for convenience continued. 

^ E. g., Andrew Jackson in 1831 and "the removal of the deposits." 
But such a course, when public opinion disapproves and both Houses 
of Congress resist, must be perilous. 



158 CONSTITUTIONAL STUDIES. 

1787 would have preferred the tenure of life or good 
behavior; Jefferson, a seven years' term, once and 
for all; but the constitution as framed fixed the 
moderate term of four years, and put no restraint 
upon re-eligibility. And popular usage for the first 
half -century made each President the leading party 
or non-partisan candidate for re-election a second 
time, with eight years as the final limit, ^ — a usage 
much modified since 1840. ^ 

A Vice-President is designated, corresponding to 
the Lieutenant-Governor in some of the old thirteen 
States, to preside over the smaller Senate or upper 
branch, and thus maintain the equilibrium of State 
representation in that body ; an officer ordinarily with- 
out patronage, but in case of the removal of the 
President from office, or his death, resignation or 
permanent inability to discharge its duties, succes- 
sor to the full power and patronage of Chief Execu- 
tive for the residue of the term of four years, for 
which they both were chosen.^ Congress may by law 
provide for the vacancy by removal, death, resigna- 
tion, or inability of both President and Vice-Presi- 
dent, and it has done so.* The double executive 

1 Jefferson, upon this practical construction, finally favored the 
constitutional tenure as that of eight potential years with an interme- 
diate appeal to the people. 

2 Const., Art. II., § 1, 1. Usage limiting the tenure to eight years 
still prevails. 

^ Const., Art. II., § 1. Presidents Harrison, Taylor, Lincoln, and 
Garfield died while in ofiice, and each was succeeded by a Vice-Presi- 
dent for the remainder of the term. At least three Vice-Presidents 
have died in subordinate station while a President survived. The case 
of a vacancy in both offices has never yet occurred. 

* Const., Art. II., § 1, Congress by act of 1886 (24 Stats. 1) so 
changed its former provision as to make the office devolve upon one 
of the late Presidential advisers (or " cabinet ") constitutionally eligi- 
ble and previously confirmed by the Senate, in a prescribed order, the 
Secretary of State taking precedence, and the Secretary of the Treas- 
ury following next. Such person holds (agreeably to constitutional 



THE FEDERAL EXECUTIVE. 159 

candidacy or double ticket is now established in 
American favor; but in 1787 the case was different; 
and in Federal usage this nominee for the second 
highest office, selected carelessly or to conciliate some 
floating or adverse element in the party, too often 
while Vice-President attracts counter influences to 
the administration in power, so that should accident 
suddenly promote him, the national policy and pat- 
ronage might take a new and sinister direction. ^ A 
Vice-President in his normal and inferior station, 
with no favors to bestow and no responsibility, has 
little but his casting vote in the Senate to give him 
a casual importance.^ 

Our constitutional method of choosing President 
and Vice-President is not felicitous. Wisely intend- 
ing that the Executive should derive authority from 
a source external to Congress, yet strongly indisposed 
to trust the free choice of the people, the framers of 
1787 tried the device of an electoral college, such as 
Maryland's constitution already employed in another 
connection. 3 No complacency could have been greater 
than that with which the convention accepted this 
solution of a perplexing problem. But political sub- 
terfuge has rarely given ultimate satisfaction, and in 
this instance experience has utterly belied the san- 



phrase) until the disability be removed, or until a President shall be 
chosen at the regular election. 

1 In each instance, thus far, except that of Vice-President Arthur's 
succession, such has been the historical result, 

2 Vice-President Clinton's casting vote (1811) against the recharter 
of the United States bank, and that of Vice-President Dallas for the 
Polk tariff of 1846, furnish rare instances where the incumbent of this 
second office has made his influence felt. More influence, with the 
people at least, might accrue if a Vice-President asserted more strenu- 
ously in these days his constitutional functions as President of the 
Senate, independent as the law makes him of senatorial favor. 

^ Supra, page 54. Europe had pursued some such method in the 
choice of the Doge at Venice, and of an emperor in Germany. 



160 CONSTITUTIONAL STUDIES. 

guine expectation of circumventing the common 
voters and Congress together. Each State should 
appoint its proportionate number of electors ^ in such 
manner as its legislature might determine; and first 
of all the State legislatures chose electors directly. 
But public opinion early in this century asserted its 
strength ; this choice of electors reverted to the people 
of each State, who usually chose by districts, until, 
for the better concentration of State influence on the 
elections, the choice by general State ticket became 
substituted, all selection of modes still depending 
upon an arbitrary legislative discretion. ^ But whether 
chosen by one State method or another, the State elec- 
tors were confessedly, from the very first, agents only 
of those who choose them for a particular purpose; 
and while the recreancy of electors to their pledges 
may in a close Presidential canvass thwart on any 
constitutional occasion the will of the voters, the in- 
evitable result of this Federal device has been to 
make each State electoral college in effect a college 
of proxies. And thus has evolved that choice of 
President and Vice-President by the common voters 
which the constitution meant anxiously to avoid, — 
a choice not unfairly apportioned and guarded, but 
clumsily arranged for popular ballot, tardily regis- 
tered, so to speak, and liable always in any State to 
tyrannous prevention or mischievous perfidy. ^ 

The original scheme, indeed, proved in certain 
details so defective, that by 1803-1804 it was changed 
by constitutional amendment. Electoral colleges 

1 Equal to the whole number of its Senators and Representatives in 
Congress. 

2 See 146 U. S. 1, confirming the clear idea that a State legislature 
may, at any time, by a change in the law, choose electors as formerly, 
or require the people to choose them by districts instead of on a gen- 
eral ticket. In South Carolina a legislature chose Presidential electors 
down to the Civil War. 

3 Const., Art. II., § 1, 2. 



CHOICE OF EXECUTIVE. 161 

were not to choose President and Vice-President ^ 
separately; but two persons were to be voted for and 
certified together to Congress, and tlie person prov- 
ing to have the greatest aggregate number of votes, 
if a majority upon the Congressional count, was to 
be President of the United States, while the second 
highest became ipso facto Vice-President. When 
parties organized, John Adams, one party chief, was 
chosen President in 1796, while Jefferson, the other 
party chief, jostled as Vice-President; next in 1800, 
when the opposition ticket led, Jefferson and Burr, 
the party candidates for President and Vice-Presi- 
dent, proved equal, so that the selection between 
them was thrown into a house soon to expire and 
controlled by their common enemies. Anarchy nearly 
resulted, for the constitution made no express provi- 
sion for the contingency of no choice by such a 
house, and intrigue delayed action. Since the 
twelfth amendment,^ electors still meet to vote in 
their respective States, but they vote in distinct 
ballots for President and Vice-President; and in case 
of no majority choice by these colleges, whether 
of President or Vice-President, the House selects 
a President from the three highest candidates for 
the one office, while the Senate chooses a Vice- 
President from the two highest candidates for . the 
other. Voting in either branch is conducted after a 
peculiar arrangement for the exigency, and in any 
case where the House fails thus to choose a President 
by the 4th of March, the Vice-President (sure to be 
selected) shall act as President. The opening of 
State certificates and the electoral count take place in 

1 See Amendment XII. (1803-1804) superseding Const., Art. II., 
§1,3. And note the specific details of this amendment. No Senator, 
Representative, or officer of the United States can be an elector ; and 
electors must not vote for a President and Vice-President, both of whom 
are inhabitants of their own State. Const., Art. II., § 1. 

li 



162 CONSTITUTIONAL STUDIES. 

solemn presence of both branches of Congress with 
the President of the Senate in the chair. ^ Choice of 
chief magistrate by the legislature, where no candi- 
date has received a majority vote in the first instance, 
is a remnant of earlier practice, and a compromise 
between legislative and popular selection. States 
long ago discarded that principle for the plurality 
choice of governor at the polls once and for all ; but 
the Federal constitution still remains unchanged in 
this respect, and that, too, while vesting such event- 
ual choice in a retiring, perhaps a defeated. Congress, 
rather than a newly chosen one. Nor does even this 
amended scheme concede that President and Vice- 
President are rightfully chosen by the people under 
any circumstances. 

State discretion prevails, we have seen, in the 
method of choosing the electors of President and 
Vice-President; but Congress may determine the 
time of choosing electors and the uniform day on 
which they shall give their votes. ^ Both religious 
and property qualifications are ignored for President 
and Vice-President, a great advance for those early 
times when the constitution was framed; but no 
person except a natural-born citizen of the United 
States ^ is eligible to either office, nor one who has 
not attained to the age of thirty-five, and been four- 

1 The President of the Senate is designated to open the certificates 
thus publicly, "and the votes shall then be counted." This means, as 
Federal practice has constantly maintained, that the count is under the 
direction of the two houses. 

2 Const., Art. II., § 1, 4. Not until 1845, and after that depressing 
experience of 1844, when the Massachusetts popular vote went to a 
Whig candidate for President after it was known that his opponent 
had carried the country, did Congress by law fix a uniform day for 
choosing electors ; namely, as at present, the Tuesday following the 
first Monday in November. 

3 Or a citizen of the United States when the constitution was 
adopted. Const., Art. II., §1,5, 



EXECUTIVE POWERS AND DUTIES, 163 

teen years a resident within the United States.^ One 
holding foreign intercourse with the world on behalf 
of our whole people should be swayed by no native 
prepossessions but those in favor of the United States 
and this hemisphere. 

The President's salary shall be paid him at stated 
times, and shall neither be increased nor diminished 
during the period for which he was elected ; and he 
shall receive no other emolument from the United 
States, or an}^ of them.^ Before entering on the 
execution of his office, he must take a simple oath or 
affirmation to faithfully execute the office of Presi- 
dent of the United States, and to the best of his 
ability preserve, protect, and defend the constitu- 
tion;^ whence the further usage of imposing cere- 
monies at the capital with an inaugural address and 
procession, none of which are essential preliminaries 
to his exercise of official power.* 

The powers and duties of the President, as defined 
by the constitution, are broad and ample for efficiency 
and index^endence. (1) In domestic administration 
he is sole commander-in-chief of the Federal army 
and navy, and also of the militia of the several States 
whenever called into the actual service of the United 
States, — a responsibility sufficiently exclusive for ini- 
tiating, conducting, or preventing war, and for sup- 

1 Const., Art. II., § 1, 5; Amendment XII., as to Vice-President. 
Diplomatic service abroad, lilce that of Mr. Buchanan shortly before 
his elevation to the Presidency, does not disqualify for want of a 
fourteen years* residence. 

2 Const., Art. II., §1,7. This salary, fixed originally at $25,000 per 
annum, was increased to $50,000 in 1873, under President Grant; the 
increase not taking effect, however, until the second term began for 
which he was re-elected. 

3 Const., Art. II., § 1, 8, 9. 

* Historical precedent lessens the ceremonials of a second term, 
and dispenses with them altogether where the Vice-President suc- 
ceeds to a legal vacancy. 



164 CONSTITUTIONAL STUDIES. 

pressing rebellion, though it must rest discretionally 
with Congress to declare formal war, and to vote or 
withhold men and supplies. Purse and sword are 
here separated. He controls, moreover, his civil 
subordinates, and, except in cases of impeachment, 
he has unconstrained power to grant reprieves and 
pardons for offenses against the United States.^ 

(2) As to foreign affairs, a concern of momentous 
national dignity and importance, and often involving 
secret and delicate complications, the President has 
properly their sole conduct, subject only to an implied 
right of Congress to press its peculiar views upon 
specific points of foreign policy, by joint resolution, 
obstructive legislation, or otherwise; ^ so that co- 
operation is desirable in all great matters of policy. 
It is for the President to receive or refuse reception 
to ambassadors and other public ministers from 
abroad,^ fulfilling all diplomatic relations for this 
government under the established intercourse of 
nations, which is essentially executive. He com- 
mences at pleasure and conducts all foreign negotia- 
tions in public affairs, and makes all treaties. But 
two-thirds of a Senate quorum must concur and give 
sanction to each treaty, since otherwise it cannot 
take effect;'^ and, furthermore, any treaty requiring 
appropriations or new legislation to carry it into 
effect ought justly to command a majority support 
in both houses.^ 

1 Const., Art. II., § 2, 1. He may pardon a person or a class of 
persons, before conviction or prosecntiou as well as later, with no con- 
straint except that rights of property vested by the prosecution cannot 
be disturbed by him. 

2 See "Forum," March, 1897, for the author's views concerning 
such discordance. 

3 Const., Art. II., § 3. All this, which belonged to Congress alone 
under the Confederacy, was felt to require executive management. 

4 Const., Art. II., § 2. 

^ In the Jay treaty debates of 1796 the argument was pressed that 



EXECUTIVE POWERS AND DUTIES. 165 

(3) In the appointment of all subordinate officers 
of the United States the permissive patronage of the 
President is almost that of a monarch. Army and 
navy officers he posts and details like any other com- 
mander-in-chief, issuing and promulgating through 
his Secretaries of War and the Navy rules and orders 
which he is competent to change. As for the vast 
and grov^ing civil list, nothing but civil-service rules, 
sanctioned and proclaimed by the President himself, 
can safely operate to curtail his constitutional right, 
whether immediately or by indirection, of controlling 
the whole Federal executive patronage from highest 
to lowest subordinates by appointing to vacancies, 
and as appears most probable, by creating them at 
pleasure.^ Congress exercises fundamentally but a 
limited constraint over such patronage. An act of 
Congress creates the office and fixes its term and 
recompense; periodical appropriations by Congress 
are essential to the payment of such recompense. 
But neither House of Congress nor both houses can 
assume to appoint to civil or military office; there 
remains only the "advice and consent " of the Senate 
essential to a full and effectual appointment to the 
higher offices. In other words, the President nomi- 
nates to the Senate, and with a majority consent of 
that body appoints ambassadors, other public minis- 
ters and consuls, judges of the Supreme Court, and 
all other officers of the United States established by 

a treaty once ratified by the Senate becomes obligatory upon the House 
under the constitution, and binds that body to vote appropriations ac- 
cordingly. But the issue remained open to discussion ; and it is now 
clear that legislation by Congress after the usual course may repudiate 
any treaty, subject to the President's veto. 11 Wall. 616. As to the 
international effect of such a breach, that is another question. 

1 The civil-service rules of the present day, for reform of former 
abuses under each new party President, are aided by legislation in 
Congress, but it is the President Avho here, as in the army and navy 
service, supplies his voluntary enforcement. But see page 170. 



166 CONSTITUTIONAL STUDIES, 

law, whose appointments are not otherwise provided 
for in the constitution. ^ But Congress may (as they 
have done frequently) vest by law the appointment 
of such inferior officers as they think proper in the 
President alone, in the courts of law, or in the 
heads of departments. The President has power to 
fill all vacancies that may happen during the recess 
of the Senate by granting temporary commissions.'^ 
He shall commission all the officers of the United 
States.^ 

(4) With regard to Congress and the regular 
course of legislation, the President has important 
functions, chief among which is the qualified veto- 
power already described,* — a power so salutary in 
practice as to have induced most States to adopt it, 
with here and there an improvement which the 
Federal instrument might well adopt in return.^ 
The President is to inform Congress from time to 
time of the state of the Union, and recommend such 
measures as he shall judge necessary and expedient; 
whence the established custom of a formal message 
at the opening of each session, which under the two 
earliest Presidents was made a grand ceremonial 
occasion.^ He may on extraordinary occasions con- 

1 The Vice-President, like the President, is chosen by electors; 
members of either branch of Congress are chosen independently of 
the Executive ; and each house controls its own subordinates. 

2 Const., Art. IL, § 2. 
8 Ih., § 3. 

* Supra, page 111. 

s See Part III., post. As (1) in giving the President a stated time 
after final adjournment in which to approve or disapprove the latest 
bills; (2) in allowing him to veto items of appropriation bills, instead 
of having to pass upon the bill as a whole. 

^ Under the administration of Washington and John Adams, the 
President went in state to Congress to deliver the message orally be- 
fore the assembled houses; after which each house would consider 
and frame a formal address in reply, bearing it in procession to the 
executive mansion with corresponding ceremony. President Jefferson 



EXECUTIVE POWEES AND DUTIES. 167 

vene both houses or either of them; and where the 
two houses disagree with respect to the time of ad- 
journment, he may adjourn them to such time as he 
shall think proper. ^ 

(5) Finally the President shall take care that the 
laws be faithfully executed ;2 and this includes not 
alone the enforcement of acts of Congress according 
to their express terms, but all the protection, national 
or international, which the nature of our constitu- 
tional government implies.^ Nor can the judiciary 
directly intervene by mandamus, injunction, or other- 
wise, to control the Chief Executive in the exercise 
of his high discretionary functions, — not even upon 
the allegation that he is enforcing an unconstitu- 
tional law.^ But as to Federal subordinates, and in 
acts purely ministerial, where nothing is left to 
official discretion, it has been ruled otherwise.^ 
Ministerial and executive duties in such a connection 
should not be confounded ; for the exercise of power 
to enforce the laws is a purely executive political 
duty, which no remedy short of impeachment by 
Congress can rightfully restrain. Congress cannot, 
however, lawfully increase these executive duties 
by delegating to the President its own legislative 
authority.^ 

The Executive Department has on the whole been 
admirably adjusted, and a supreme incumbent of high 

in 1801 substituted the simpler and more convenient method of sending 
to Congress a written message, to which no formal reply was expected, 
and such has since continued the uniform practice of government. 

1 Const., Art. II., § 3. 

2 Ih. 

3 135 U. S. 1. 

4 4 Wall. 475 ; 6 Wall. 57. 

5 1 Cranch, 137; 9 Wall. 298; 12 Pet. 524. 

6 143 U. S. 649. But suspension of reciprocity by the President's 
authorized proclamation is not open to such objection. Ih. 



168 CONSTITUTIONAL STUDIES. 

character, wisdom, and good sense cannot fail even in 
times of peace to make a strong and abiding impres- 
sion. The very fact that Congress has such power 
for enacting momentous laws unwisely renders it all 
the more desirable that the President should have a 
counteracting influence like some tribune of the 
people. Another strong bulwark against the tyranny 
of either Congress or the President, another grand 
popular reliance, will next appear in the Federal 
Judiciary, and most of all in the Supreme Court; 
and the tenure of Federal judges, which alone is 
fixed for life or good behavior by the constitution, 
places them in the civil service above the reach of 
arbitrary removal. 



IX. 



FEDERAL CONSTITUTION ANALYZED; THE 
JUDICIARY. 

The want of a distinct and efficient Federal judi- 
ciary was felt to be so vital a defect of the old Con- 
federacy that the creation of this third department of 
government under the Federal scheme of 1787 was 
readily allowed. Here and there in Articles of Con- 
federation we find a permissive establishment of 
courts for piracies or captures on the high seas, while 
Congress itself was made the final tribunal for deter- 
mining disputes between States over such matters as 
boundaries.^ Yet in all this there was found no 
independent Federal establishment, no sanction for 
Federal judgments, no explicit means of enforcing 
upon States or their inhabitants a decision rendered. 
A judiciary aids in the due execution of powers 
given to a government, by applying compulsion to 
refractory individuals; its process should be afforded 
to all invoking the public standards of right for the 
adjustment of private controversies ; it should inter- 
pret laws, treaties, and the constitution so as to give 
a uniform sense to which all good citizens must 
submit. 

The Federal judiciary established by our consti- 
tution of 1787 was made accordingly after the 
Montesquieu formula, as independent and distinct as 
either Congress or the Executive. One declared 

1 Confed., Art. IX. 



170 CONSTITUTIONAL STUDIES. 

object of the preamble to that constitution was to 
"establish justice;" and among the enumerated 
powers of Congress "to constitute tribunals inferior 
to the Supreme Court. "^ The judiciary article itself 
declares expressly that "the judicial power of the 
United States shall be vested in one Supreme Court, 
and in such inferior courts as the Congress may from 
time to time ordain and establish." ^ Thus, while 
Congress may model and remodel the lower Federal 
tribunals from time to time, as may be deemed expe- 
dient, the Supreme Court, which is the head and 
crown of the whole system and the Federal tribunal 
of last appeal, remains as perpetual in functions, as 
intact and independent (except for diminishing or 
increasing its membership when vacancies occur ^ ) as 
Congress itself or the Executive. No law can abolish 
or supersede it; no Presidential fiat can change the 
incumbents. So complete a separation of a judiciary 
from the other two departments of government sup- 
plied to our Federal system what few States possessed 
thus early.* In tenure and method of appointment 
this Federal system conformed fairly to the spirit of 
1787, but unchanging afterwards, as most State 
systems have done, it anchors fast to stable conserv- 
atism, as so august a judiciary should. All Federal 
judges have been regularly appointed by the Presi- 
dent, subject to confirmation by the Senate, and those 
of the Supreme Court cannot constitutionally be 
appointed otherwise.^ Their tenure is defined unre- 
servedly as "during good behavior; " and their com- 
pensation, which they are entitled to receive "at 
stated times," shall not be diminished (though Con- 

1 Art. I., § 8. 

2 Art. III., § 1. 

3 Vacancies cannot be compelled except by impeachment. 
* Supra, page 66. 

5 Supra, page 165. 



THE FEDERAL JUDICIARY. 171 

gress may increase it) during their continuance in 
office.^ A Federal judge may be displaced by due 
process of impeachment, but the Federal constitution 
gives no power to remove on the simple address or 
joint resolution of Congress. ^ 

Since Congress may change the inferior Federal 
courts at will, so may it abolish, and thus incidentally 
deprive judges of their offices. A premature circuit 
court establishment was thus swept away in 1801 
when Jefferson became President, and politics con- 
quered politics. Soon after the Civil War circuit 
courts with special judges were re-erected by Con- 
gress, and in 1891 was interposed a court of appeals 
to rank next in order to the permanent Supreme 
Court. District courts in each State were always 
the Federal tribunals of first resort. Territorial 
courts, erected as incidental to general sovereignty 
over national territory, are not within the strict estab- 
lishment ; and judges of such courts may be appointed 
for definite terms, and are removable by the Presi- 
dent.^ Nor have the President's military provisional 
courts any permanent civil character.^ 

Our Federal courts have kept to their own domain, 
performing no functions except those of a judicial 
nature, and such as the constitution imposes plainly 
upon them. They refuse to arbitrate political issues 
or to participate in executive business ; they decline 
to sit as commissioners or determine questions sub- 
ject to the consideration and supervision of Congress 
or of some executive officer.^ The Supreme Court 

1 Const., Art. III., § 1. To induce but not compel voluntary retire- 
ment at old age after long and faithful service, acts for pensioning 
such judges have been passed. 

2 Cf. State organic law, page 67. 

3 1 Pet. 511; 141 U. S. 174. 

4 9 Wall. 129 ; 13 How. 498. 

5 Cooley, 51 ; 13 How. 40; 19 Wall. 107, 655. 



172 CONSTITUTIONAL STUDIES. 

would not entertain appeals from the Court of Claims 
until Congress gave a judicial character to that 
tribunal by making its money judgments competent.^ 
Nor does the organic rule of States like Massachu- 
setts obtain for procuring the Supreme Court's 
advice as a basis for future executive or legislative 
action; but its opinions are rendered only in the 
course of regular litigation. ^ 

Not to be too technical in describing here the judi- 
cial power which United States courts exercise, we 
may. observe that Federal jurisdiction arises under 
three different conditions : (1) Because of the sub- 
ject-matter; as where a case, whether in law or 
equity, civil or criminal, arises under the Federal 
constitution, the laws or the treaties of the United 
States and the interpretation thereof is material to 
the issue; and besides in all cases of admiralty and 
maritime jurisdiction arising on the high seas or 
internal navigable waters, or in interstate commerce, 
subjects vested in the Federal government.^ And 
here, both in interpretation and enforcement, the 
Federal judiciary is supreme. (2) Because of the 
parties litigating whom local State process cannot 
fairly conclude. As in civil cases, regardless of the 
subject-matter, between citizens of different States; 
so that in consequence our Federal decisions compre- 
hend to-day a great body of commercial and business 
law, not strictly binding as precedents otherwise 

1 Cf. 2 Wall. 651, and acts of 1863. 

2 During President Washington's administration, and while the 
Supreme Court had as yet very little judicial business to transact, an 
opinion upon the legal bearings of certain matters before the Cabinet 
was refused by Chief Justice Jay on constitutional grounds. This, 
however, has not prevented judges nor even the Chief Justice from 
serving in some special capacity for a public emergency. 

2 Federal jurisdiction here is very broad. 12 How. 443. 



THE FEDERAL JUDICIARY. 173 

upon the courts of individual States, but rendered so 
as to harmonize as far as possible the contemporaneous 
law and practice of the States where parties litigant 
resided. (3) Because of subject-matter and parties 
combined ; and with particular reference to the grav- 
ity of State or international disputes which might 
affect the peace and stability of the whole Union. 
To this head belongs the exclusive Federal jurisdic- 
tion of all cases which affect ambassadors, other 
public ministers and consuls; of all controversies to 
which the United States shall be a party ; of contro- 
versies between two or more States, ^ between a State 
and citizens of another State, ^ or between citizens of 
different States; between citizens of the same State 
claiming lands under grants of different States ; and 
between a State or the citizens thereof and foreign 
States, citizens or subjects.^ 

In this third and gravest class, or rather in all 
cases which affect ambassadors, other public ministers 
and consuls, and those in which a State shall be a 
party, the Supreme Court takes original and uncon- 
trolled jurisdiction under the constitution. But in 
all such other cases as we have mentioned, the 
Supreme Court exercises an appellate jurisdiction 
merely, both as to law and fact; and this, further- 
more, subject to such exceptions and regulations as 

1 As in some question of boundaries or division. 1 1 "Wall. 39. 

2 An early decision against the State of Georgia by the Supreme 
Court (2 Dall. 419), produced such alarm that the constitution was 
amended (1794-1798) so as to exclude Federal jurisdiction of any suit 
in law or equity commenced or prosecuted against one of the United 
States by citizens of another State, or by citizens or subjects of any 
foreign State. Amendment XI. But a State may expressly waive 
such defence. 108 U. S. 436. The principle that a sovereign is not 
amenable, involuntarily, to the suit of an individual, has no application 
to a suit by one government against another government. 143 U. S. 
621. 

3 Const., Art. III., § 2. 



174 CONSTITUTIONAL STUDIES. 

Congress shall make.^ This appellate jurisdiccion 
comprehends the highest State courts as T^ell as 
inferior Federal tribunals, wherever a cause of juris- 
diction affirmatively appears; in considering State 
constitutions, for instance, or laws, which involve a 
question of conflict with the Federal " supreme law 
of the land. "2 But the Supreme Court imposes 
cautious conditions upon State supervision. A griev- 
ance must be affirmatively shown. The appeal must 
not be upon an agreed statement, but as the result of 
honest antagonism ; nor will it be entertained on any 
simple issue of facts, nor where the State tribunal 
might have decided upon some other ground, but 
only in law and necessarily. ^ Federal courts are 
indisposed to take a criminal out of State custody by 
Jiaheas cor^pus ;^ nor can the mere hardship, impolicy, 
or injustice of any State law or constitutional pro- 
vision be alleged as an objection to its validity. 
Aside from all such appellate jurisdiction, cases are 
removed from State to Federal inferior courts upon 
proper jurisdiction shown. ^ 

Europeans often wonder that Federal and State 
courts can work together in upholding so complex and 
conflicting a jurisdiction; but, as English observers 
admit, the system of Federal supervision works, and 
now, after a hundred years of experience, works 
smoothly.^ For the fundamental principle in the 
United States is that the supreme law-making power 
resides in the people, and that whatever they funda- 
mentally enact binds everywhere; so that, whether 

1 Const., Art. III., § 2. The Court of Appeals (1891) now renders 
final judgment in many cases. 

2 Const., Art. VI. 

3 143 U. S. 339 ; 150 U. S. 361 ; 152 U. S. 355. 

4 156 U. S. 272. 

5 Cooley, 129 ; U. S. Rev. Stats. 641, and acts of 1887 and 1888. 
^ 1 Bryce's Commonwealth, 245. 



JURIES AND FEDERAL GRIMES. 175 

in State or Federal application, that which is uncon- 
stitutional transcends the permanently expressed will 
of the people.^ Delay and patient deliberation by 
the highest tribunal over what has been fully argued 
in a concrete case, not arising until the enactment of 
disputed validity has been put in force, must go far 
towards preparing the public mind for accepting an 
adverse judgment. Public legislation submits thus 
to our sober second thought, and the Supreme Court 
is keeper of the national conscience, the guaranty of 
minority rights, as it ought to be. For, as Burke 
has so fitly observed, every government ought in 
some sort to make a balance of its judicial authority, 
and give security to its justice against its power. ^ 

One or two provisions of the Federal constitution 
concerning judicial procedure may be noted in this 
connection. The ancient trial by jury, which we 
have seen our Revolutionary States proclaiming 
among fundamental rights,^ is clearly secured in the 
instrument of 1787, so far as all criminal trials 
(except in impeachment) are concerned. As to vici- 
nage, always an important incident of this sacred 
right, lest one might be dragged into distant neigh- 
borhoods for arraignment, it is further provided that 
such trial shall be held in the State where the crime 
shall have been committed; or if not committed 
within any State, at such place as Congress may by 
law have directed.* But, this original instrument 
ignoring the civil trial by jury, one of the earliest 

1 Even the Supreme Court of the United States has in one or more 
great instances been considered as overruled by the people, acting 
through political change, and imposing their " higher law." 

2 For more technical details of Federal judicial power, see Cooley's 
Elements, 111-147; Story, § 1577, latest notes. 

3 Supra, page 32. 

* Const., Art. III., § 2, 3. 



176 CONSTITUTIONAL STUDIES. 

amendments preserved that right in all common-law 
suits, where the value in controversy should exceed 
twenty dollars; forbidding to United States courts 
the re-examination of any fact tried by a jury other- 
wise than according to the rules of common law.^ 
Other amendments insisted upon the presentment or 
indictment of a grand jury, defined the vicinage more 
closely as that of the "State and district," wherein 
the crime shall have been committed, such district 
having been previousl}^ ascertained by law, and added 
important safeguards to the accused which will be 
noticed later. ^ 

Treason against the United States is most liberally 
defined, repudiating the odious doctrines of construc- 
tive treason once prevalent in the mother country. 
Such treason, it is stated, shall consist only in levy- 
ing war against the United States, or in adhering to 
their enemies, giving them aid and comfort.^ Equally 
liberal as to the proof of such treason, against the 
mockery of English State trials in the preceding 
century, our constitution declares that conviction of 
treason must be on the testimony of at least two wit- 
nesses to the same overt act, or on confession in open 
court. And once more setting an example in pun- 
ishment for the offence, which England followed long 
after, it repudiates the old common law which cruelly 
visited the offence upon children and children's 
children. Congress may declare the personal pun- 
ishment, but no attainder of treason shall work cor- 
ruption of blood or forfeiture beyond the life of the 

1 Amendment VII. 

2 Amendments V., VI. 

^ Const., Art. III., § 3. This provision is taken from the old Statute of 
Treasons, 25 Edw. III., which during the English civil war was plainly 
violated in Sidney's trial. See 4 Bl. Com. 75. A mere conspiracy 
by force is held not sufficient, without an actual levying of war. 
4 Cr. 75. 



JURIES AND FEDERAL CRIMES. Ill 

person attainted.^ There is no common-law juris- 
diction of crimes in the United States, but Federal 
crimes must be defined by Congress, subject to the 
further written law of the Federal constitution. ^ 

1 See 9 Wall. 339, as to a case under our own civil war of 1861-65 ; 
also English statute 3 & 4 William IV., c, 106. With hanging, draw- 
ing, and quartering, the old English punishment of a traitor's person 
was barbarous enough. Hanging has been the appropriate modern 
punishment; but under Act July 17, 1862, Congress gives the court 
discretion to sentence by fine and imprisonment instead. The criminal 
offence of treason, though heinous enough, is one of the most difficult 
to calmly adjudicate or discern in any body politic. Under our own 
composite system there is allegiance due to the United States, and alle- 
giance due to the State, the former being now acknowledged para- 
mount ; and one might render himself liable to State prosecution for 
some local traitorous offence to which these Federal clauses would not 
per se apply. 

2 8 Pet. 591 ; 125 U. S. 555. 



12 



X. 



FEDERAL CONSTITUTION ANALYZED; INTER- 
STATE AND TERRITORIAL RELATIONS. 

Article IV. of the constitution is largely devoted 
to interstate provisions which affect private rights 
and the States themselves. Much of it is an expan- 
sion from the earlier text of the Articles of Con- 
federation. 

That full faith and credit shall be given in each 
State to the public acts, records, and judicial pro- 
ceedings of every other State is admitted to be an 
essential rule of comity, and particularly so in a 
co-ordinate Union like ours. The constitutional 
phrase is almost literally borrowed from Articles of 
Confederation, 1 with the fitting supplement that 
Congress may by general laws prescribe the man- 
ner and effect of such proof. ^ 

The citizens of each State shall be entitled to all 
privileges and immunities of citizens in the several 
States.^ This, too, is a paraphrase only less literal 
from the Articles of Confederation, which recognized 
such a comity under the earlier Union, " the better 
to secure and perpetuate mutual friendship and inter- 

1 Articles, IV. 

2 Const., Art. IV., § 1. Inquiry into the jurisdiction of another 
State court over parties and subject-matter is not precluded. 138 
U. S. 439 ; and see 141 U. S. 657. 

3 Const., Art. IV., § 2. See also Amendments XIV., XV., enlarging 
the constitutional effect of this clause. 



INTERSTATE PEO VISIONS. 179 

course among the people," and for equal "privileges 
of trade and commerce." A sort of mutual State 
citizenship, with reciprocal privileges and immuni- 
ties, as in passing through, residing, pursuing busi- 
ness and enjoying liberty and property, is here under 
the Federal system of 1787 effectively secured. It 
is further declared in the same connection — once 
more paraphrasing Articles of Confederation ^ — that 
fugitives from justice, charged in any State with 
treason, felony, or other crime, shall be extradited 
on executive demand, wherever found, to be removed 
to the State having jurisdiction of the crime. ^ This 
and another clause, now happily obsolete since the 
extinction of American slavery,^ complete the comity 
provisions which affect our interstate relations more 
immediately for the individual.^ 

Next as concerns States immediately in their public 
relations, provision is first made for extending the 
original Union by the prospective admission of new 
States. Under the Confederacy a similar extension 
had been authorized, embracing Canada, with pos- 
sibly other British- American colonies ; ^ but the Con- 
tinental Congress went beyond such literal authority 
when title to the vast region of the Mississippi was 

1 Articles, IV. The original article is drawn out rather loosely, 
and so as to avoid controversy under a confederated system which left 
all naturalization to coequal States. 

2 Const., Art. IV., § 2. This is a State executive duty which Fed- 
eral courts cannot compel. 24 How. 66. Local retaliation generally 
corrects any mischief. 

^ Const., Art. IV., § 2, 3, known historically as the " fugitive slave 
clause," though purposely avoiding the word " slave ; " and requiring 
State extradition of persons " held to service or labor in one State " 
and escaping to another. That clause was in expression borrowed 
from the early New England Articles of Confederation, page 73. 

* See for technical details, Cooley, 195-201. 

5 Articles, XI. 



180 CONSTITUTIONAL STUDIES. 

clearly quitclaimed by leading States to the Union. ^ 
Under our present constitution the discretion to 
admit new States is lodged unreservedly in Congress 
like ordinary legislation; and ever since the Louisiana 
purchase of 1803, that di.scretion, which had clearly 
comprised the original territorial area of the United 
States v/estward to the Mississippi, has been repeat- 
edly extended in practice so as to comprehend with- 
out constitutional change whatever adjacent foreign 
territory on this continent between the two oceans 
may be acquired at any time by war or peaceful 
purchase. But both as to policy and constitutional 
right, so vast and unreserved a power to Congress, 
or to the treaty-making department, without limit of 
popular referendum, constitutional amendment, or 
unusual constraint whatever, to change the whole 
scope and character of this Union by the incorpora- 
tion of foreign soil and foreign populations or races, 
is worth challenging on every new occasion ; for it is 
a power pregnant with the gravest dangers, such as 
debauched and finally destroyed the Roman empire. 
This confederated system of ours recognizes no per- 
manent political condition anywhere but that of co- 
equal States. And as for admitting new States 
formed within existing and recognized domestic ter- 
ritory, the unconstrained power of Congress which 
the framers of 1787 intended to bestow is ample 
enough to be dreaded. ^ For no State once admitted 
to the Union can ever be deprived of its equal 

1 Supra, page 85. In the Ordinance of 1787, whieh our first Con- 
gress of 1789 ratified, it had been agreed that new States not exceed- 
ing five might be formed from the northwest territory and received 
into the Union. Articles of Confederation were in their final form 
assented to by all the States but Maryland, before this territorial ces- 
sion was made at all; hence the insufficient authority which those 
Articles had recited. 

2 Const., Art. V. 



TERRITORIES AND NEW STATES. 181 

suffrage in the Senate without its consent. ^ New 
States, therefore, may be constitutionally admitted 
by Congress into this Union; but no new State shall 
be formed or erected within the jurisdiction of any 
other State, nor any State be formed by the junction 
of two or more States or parts of States, without the 
consent of the legislatures of the States as well as of 
Congress itself. ^ 

Further power is given Congress in this section 
" to dispose of and make all needful rules and regu- 
lations respecting the territory or other property of 
the United States. "^ By 1787 a vast domain west 
of the Appalachian range to the Mississippi became 
the undisputed "property" of the whole Union, not 
under the Articles of Confederation, but rather as a 
virtual concession gained when ratifying them from 
the older States. Those sovereign cessions from 
Virginia and other States were not without special 
conditions regarding the future status of American 
slavery, which Congress later recognized. ^ Terri- 
tories most ample, and stretching from ocean to ocean, 
have since come into the Union, as the sole fruit of 
national purchase and conquest; yet territorial the- 
ories have been occasionally broached since 1787, as 
though the Union were incompetent to regulate freely 
its own soil for settlement and republican education.* 

1 Const., Art. IV., § 3. The consent of Congress need not be di- 
rectly given if fairly inferable from its course of action. 11 Wall. 39. 
As might well be surmised, no States have ever been consolidated by 
junction on such terms as above ; while in repeated instances — e. g., 
Maine from Massachusetts and West Virginia from Virginia — old 
States have been constitutionally subdivided by triple consent. 

2 Const., Art. IV., § 3. 

'^ " Nothing in this constitution shall be so construed as to prejudice 
any claims of the United States or of any particular State." lb. 
This mollifying clause appears to have been inserted with express ref- 
erence to territorial jurisdiction. 

* " Squatter sovereignty " and other such ingenious doctrines served. 



182 CONSTITUTIONAL STUDIES. 

Over this general subject, however, as also in the 
admission of new States, since territories ripen natu- 
rally into statehood, Congress exercises a plenary 
constitutional discretion, which ought to respect the 
general welfare and wishes ; ^ for the constitution was 
made for States and not for territories, and the terri- 
torial condition is in a proper sense only temporary 
and preparatory. 

Finally, it is imposed on the United States as a 
duty (i) to guaranty to every State a republican 
government; (2) to protect it against invasion; and 
(3) to protect it upon due application against domestic 
violence. 2 The first or guaranty clause, whose per- 
version in meaning was attempted during the recon- 
struction era which followed close upon our civil 
war, presupposes a State government of a republican 
form already in existence; and while permitting 
States to change their local organic law, imposes 
only the restriction that republican shall never be 

however, a temporary political purpose, which vanished with the final 
disappearance of slavery. 

1 The plenary power of Congress over the territories combines that 
of a local proprietor of land and of a regulator of local government. 
Doubtless that power is subject by implication to all fundamental lim- 
itations in favor of individual rights which are now formulated in the 
Federal constitution and its amendments, 136 U. S. 1. Methods of 
territorial government for the Union date back to 1784 and to the 
Continental Congress, which laid broadly the foundations of the pres- 
ent public land system, clearly recognizing at once the solemn trust of 
nurturing and educating the new settlements into loyal, self-governing 
and orderly States. Two forms of territorial government have been 
from time to time established by Congress as circumstances required : 
(1) an executive Federal government, somewhat arbitrary, under the 
immediate appointment of President and Senate; (2) a Federal gov- 
ernment partly popular, which recognizes a territorial legislature and 
local representation ; and this is the usual kind. Congress may and 
usually does impose certain fundamental conditions upon the admission 
of each new State. 

2 Const., Art. IV., § 4. 



FEDERAL GUARANTY AND PROTECTION. 1^^ 

exchanged for anti-republican constitutions.^ By 
republican government we should understand a gov- 
ernment whose representatives are chosen by the 
people ; and while no czar or hierarch would be thus 
allowable, legitimate republican government may 
take a wide variety of forms. Moreover, a State 
republican government once established may demand 
the Federal assistance because of the hostile action 
of some invading foreign power, or by reason of some 
Revolutionary domestic uprising against the consti- 
tuted authority ; and in either case, the intervention 
of the Federal government to protect the people in 
their existing government would be proper.'^ In 
other extreme instances, as where despotism is in- 
stalled and organized under forms of law,^ or there 
has never been a State government, or that which 
once existed has been displaced in the course of 
rebellion and attempted secession and lapses into 
domestic disorder, some just enabling action by the 
United States may be advisable or even necessary. 
As for the protection of an existing State against 
invasion, such is the natural incident of Federal con- 
stitutional government for occasions of emergency, 
as was State self-protection under the previous Con- 
federation. Protection, however, against domestic 
violence is so delicate an exercise of Federal power, 
and so liable to abuse and sensitive collision, that it 
is expressly guarded by requiring the State Legisla- 
ture, or (if it cannot be convened) the State Execu- 
tive, to invoke such protection. This expression, 
however, does not cover the whole ground, for by 
the present age the network of interstate commer- 

1 Federalist, Nos. 21 and 43. 

2 7 How. 1 ; 7 Wall. 700. The Dorr Rebellion in Rhode Island, 
1841-42, furnished an instance in point. 

^ As in the Mormon territorial outbreak of 1857. 



184 CONSTITUTIONAL STUDIES. 

cial and other common interests has overspread the 
area of the United States so completely that where 
State authorities are themselves remiss in puttnig 
down local disorder or in caUing for Federal aid, the 
President, supported by Congress, is justified m 
marching troops to the scene and intervening for 
the welfare of the whole people and the public 
concerns.^ 

1 As in the Illinois disturbances of 1894. By virtue of interstate 
commerce and carrying the mails, "the government of the Umted 
States has jurisdiction over every foot of soil within its territory and 
acts directly upon each citizen." Debs, Re, 158 U. S. 564. 



XI. 



FEDERAL CONSTITUTION ANALYZED; ADOPTION, 
POWER TO AMEND, AND FEDERAL SU- 
PREMACY. 

Consonant to the spirit of that earlier age, both 
adoption and future amendment of this Federal con- 
stitution were deemed suihciently sanctioned by repre- 
sentatives of the people without a direct reference to 
the polls. This, indeed, is the essence of republican 
government as distinguished from democracy, whose 
fiat is a plebiscitum.^ Articles of Confederation had 
been the product of a general Congress submitted 
to the thirteen State legislatures for confirmation. 
The constitution of 1787, on the other hand, framed 
by the Philadelphia convention, went to conventions 
of the different States for final sanction after a per- 
missive reference by the Continental Congress; a 
closer reference than before to the will of the people 
(since conventions are of spontaneous popular origin), 
yet an incomplete one. The prevalent disregard of 
immediate popular expression was more plainly mani- 
fest in the provisions made for future constitutional 
amendment, which left the convention or legislative 
mode a mere matter of option by Congress, still 
ignoring all direct vote by the people. No inadver- 
tence gave such shape to these provisions as to 
make amendment difficult; for that Philadelphia 
convention would never have met, the scheme of 

1 Supra, page 47, for earlier State practice. 



186 CONSTITUTIONAL STUDIES. 

Confederation could not have been superseded at all 
at this period, had one specific amendment passed all 
thirteen legislatures instead of twelve, — had organic 
change been possible without a universal State assent. 
Even now, by a sort of revolutionary process, this 
new contilitution of 1787 was to be sufficiently estab- 
lished by the ratification of nine out of thirteen 
States,^ and any still reluctant might remain outside. 
Two specific modes of future amendment we find 
set forth : one, the simpler and the only one in fact 
which a century's experience has applied, is by spe- 
cific amendment proposed to the several States by 
two-thirds of both Houses of Congress ; the other, by 
a convention which Congress shall call on the appli- 
cation of the legislatures of two-thirds of the States. 
In either case Congress takes the direct initiative, 
though in the latter case its duty becomes formal 
and imperative, and a mere majority may suffice. 
In neither instance, however, is the President's 
approval needed, as though to legislation, but Con- 
gress performs a special function which the constitu- 
tion executes. 2 For calling a new convention the 
remote initiative vests in scattered but co-operating 
State legislatures; but as those several legislatures 
must apply to Congress, no spontaneous Federal con- 
vention like that of 1787 is ever again to be legally 
called, seeking Federal approval afterwards. For 
the ratification of a new Federal constitution or of 
prospective amendments, three-fourths of all the 
States must give assent either by local legislature or 
convention, as Congress may propose in advance.^ 
If such a thing be organically possible as an irrepeal- 

1 Const., Art. VII. See page 95. 

2 3 Dall. 378. 

3 Const., Art. V. Congress has thus far chosen to propose ratifi- 
cation by State legislature. The mode is not optional with States, nor 
is reference made at all to a direct popular expression. 



METHODS OF AMENDMENT. 187 

able ordinance of man, which we may well doubt, this 
constitution has in one important particular ruled out 
all change.^ 

Students of our American system have criticised 
that rigid Federal conservatism which compelled so 
large a fraction as three-fourths of all the States to 
give any proposed change validity. Yet there are 
sound reasons for making radical Federal amend- 
ment more difficult than in the less spacious area of 
individual States. In fact, a popular impulse that 
moves two-thirds or even a large majority not sec- 
tional of the States to ratify easily widens its propel- 
ling force to the greater fraction; and so was it with 
the adoption of the instrument of 1787 itself. The 
greater difficulty is rather in initiating change at all, 
in overcoming the first inertia, in getting Congress 
by a two-thirds vote to propose something remedial, 
where, most of all, one or the other branch must be 
shorn of privileges should the change take effect. A 
hundred years and more have produced only fifteen 
articles of amendment, of which the first ten, pro- 
posed by the very first Congress, really rounded out 
the original instrument under a tacit compromise with 
ratifying States, while the last three were the exac- 
tion of a bloody civil strife. The two intermediate 
amendments, affecting Congressional privilege in no 
respect, aimed to rectify minor constitutional defects 
which Federal procedure had disclosed. When 
public opinion becomes well aroused, the gates of 
constitutional amendment fly wide open and entrance 
gives easy exit; but it is the concrete that arouses, 
and the public mind, dormant through generations 
of prophetic foreboding, awakes only when sufferings 
are actual. 

1 Const., Art. V., close of article ; ( 1 ) as to slave-trade privileges, 
obsolete since 1808; (2) as permanently guaranteeing the equality of 
States in the Senate. 



188 CONSTITUTIONAL STUDIES. 

The sixth article contains three clauses. The first 
proclaims all debts and engagements of the old 
Confederation equally binding upon the new Union. ^ 
The second, or Federal supremacy clause, constantly 
invoked by the Federal judiciary when State consti- 
tutions or enactments violate the grand ordinance of 
Union, declares explicitly that this Federal constitu- 
tion, and all pursuant laws and treaties of the United 
States, "shall be the supreme law of the land;" 
enjoining further their paramount obligation not upon 
the United States judiciary alone, by implication, 
but upon the judges in every State, whatever the 
constitution and laws of any State may recite to the 
contrary. 2 By "supreme law of the land," or para- 
mount comprehensive law essential to the whole 
Union, is meant that which Congress and all other 
departments of government must respect at all times, 
and to which States and their own departments when- 
ever in conflict must yield subordination. The 
Federal constitution measures therefore the validity 
of laws and treaties of the United States, which to 
be valid must conform to its own ordinance ; and as 
between these, a statute or a treaty is equally obliga- 
tory in a national and domestic sense, so that the one 
may supersede the other if later in point of time.^ 

The third clause of this article, consistently with 
such a doctrine of Federal supremacy, binds all high 
officers, executive and judicial, as well as all mem- 
bers of the Legislature, whether of the United States 
or of the several States, to swear to support this 

1 Const., Art. VI., § 1. Since all thirteen States entered finally the 
new Union, this pledge of public faith well fortified the new national 
policy of sustaining sacredly the public credit. 

2 Const., Art. VI., § 2. 

^ 11 Wall. 616; 143 U. S. 570. Of course in an international sense 
the repeal of a treaty may involve a breach of public faith with inter- 
national consequences, as concerns the other contracting power. 



FEDERAL OATH AND TESTS. 189 

Federal constitution, — the simple and only oath or 
affirmation that the United States of America impera- 
tively asks from any one. And finally, in a most 
liberal spirit for that eighteenth century, when State 
official tests were commonly exacting, ^ it is announced 
that no religious test shall ever be required as a 
qualification to any office or public trust under the 
United States. ^ 

1 Supra, page 43. '■^ Const., Art. VI., § 3. 



XII. 

FEDERAL CONSTITUTION ANALYZED; 
SUBSEQUENT AMENDMENTS. 

The amendments to the original Federal constitu- 
tion of 1787 subsequently adopted to this date are 
fifteen in number. Of these the first ten collectively 
are in the nature of a supplemental declaration of 
rights, embracing a careful selection by the First 
Congress from an immense mass of proposed amend- 
ments, which doubtful States, beginning with Massa- 
chusetts, had framed and submitted when ratifying 
the original instrument. Ratifying unconditionally 
for the sake of harmony what appeared an imperfect 
constitution in its original draft, these States in con- 
vention gave their needed consent upon an under- 
standing that the new Federal government would at 
once initiate amendments of this general character 
to broaden and strengthen the safeguards of liberty; 
nor in this did the new government disappoint them.^ 
Many of these "bill of rights " provisions were trans- 
ferred from State constitutions already established. ^ 
The eleventh amendment ^ stifled suits in the Supreme 

1 Araeudments I.-X., all submitted together to the State legisla- 
tures in 1789, and declared adopted in 1791. Congress proposed at the 
same time two other amendments which failed of State adoption. One 
of them fixed a permanent rule for apportioning the House of Eepre- 
sentatives; the other forbade that a law varying the compensation of 
members of Congress should take effect until after a new election of 
representatives. 

2 Cf. Part I., c. 3. 

<* Proposed in 1794 and declared adopted in 1798. 



SUBSEQUENT A3£ENDMENTS. 191 

Court of the United States obnoxious to State sov- 
ereignty, and prevented such litigation for the future. 
The twelfth amendment ^ corrected defects in the 
machinery of Presidential elections made patent in 
the bitter party contest of 1800, but did not radically 
change the plan. The thirteenth, fourteenth, and 
fifteenth amendments, completing the list at the 
present time, were the cumulative result of that 
fratricidal conflict whence emerged a Union purged of 
human slavery and readjusted to the new social 
condition of equal civil rights, regardless of race or 
complexion. 2 

Congress has at different epochs entertained a vast 
variety of amendment propositions, many of them 
crude and transient, which have failed of a two- 
thirds passage in both houses and public insistence. 
One memorable one went to the States in 1861 for 
adoption, but in the tremendous drift of events 
became overwhelmed; pledging the Union never to 
interfere with slavery as locally existing in a State, 
it preceded by only four years that thirteenth amend- 
ment whose actual scope was diametrically opposite, 
for public opinion in those four years underwent a 
revolution. No co-operative State application to call 
a convention such as the constitution recognized has 
ever yet demanded the action of Congress ; nor has 
Congress ever required an amendment to be ratified 
by State conventions instead of the Legislature. 

I. " Bill of Rights " was the compromise addition 
purposed to the original instrument of 1787. Several 
important clauses of the original constitution had 

1 Proposed in 1803 and declared adopted in 1804. 

2 The thirteenth amendment was proposed and adopted in 1865. 
The fourteenth was proposed in 1866 and adopted in 1868. The fif- 
teenth was proposed in 1869 and adopted in 1870. 



192 CONSTITUTIONAL STUDIES. 

actually that character, ^ but no parade was made of 
them, as though of blazing formulas our framers 
were weary. Of the first eight compromise amend- 
ments, which touch the individual and civil rights, 
it should be said that in general they apply exclu- 
sively to Federal jurisdiction and procedure ;2 States 
themselves cherishing similar maxims for appli- 
cation to issues more peculiarly their own. As to 
the first amendment (1) Congress must make no 
establishment of religion nor prohibit its free exer- 
cise, — a prohibition which is not transcended by 
breaking down some despotic hierarchy or polygamy 
pursued under the guise of religion in the Territories,^ 
but inculcates non-interference in private preferences 
of religious worship. (2) Congress must not abridge 
by law the freedom of speech or of the press, — a 
maxim already pronounced in the States, where its 
application must mostly be confined.* (3) Congress 
must not abridge by law the right of the people 
peaceably to assemble and to petition the government 
for a redress of grievances.^ 

II. A well-regulated militia being necessary to 
the security of a free State, the right of the people 
to keep and bear arms shall not be infringed.^ 

1 E. g., the humane limit to penalties for treason, the habeas corpus, 
no title of nobility, no religious test for ofifice, and jury trial in criminal 
cases. 

2 147 U. S. 490, as to fifth amendment; 124 U. S. 200; Story, 
§ 1782, notes. 

s 136 U. S. 1. 

* The "sedition act" of Congress in 1798 appears to have heen 
founded upon a misconception of Federal jurisdiction in such matters 
as well as of good policy. But anti-lottery acts are no such abridg- 
ment of freedom, for freedom is not immoral license. 

5 This does not sanction a threatening demonstration of violence 
at the capital. To petition is not to demand, but to ask with loyal 
deference. This, too, we have seen, was a State maxim. Supra, 
page 35. 

6 For State maxims corresponding, see page 33= In the English 



FIRST TEN AMENDMENTS. 193 

III. Soldiers shall not be quartered in time of 
peace in any house without the owner's consent, nor 
in time of war except as the law may prescribe, — • 
an abuse of the colonial age while revolution was 
impending. A common incident of war while bel- 
ligerent or rebellious soil is occupied, it should not 
be arbitrary or injurious to peaceful and loyal 
citizens. 

IV. The people shall be secure against unreason- 
able searches and seizures, and no warrants shall issue 
but upon probable cause, supported by oath or affir- 
mation and a particular description. ^ 

v. -VIII. The next four amendments chiefly con- 
cern procedure in the Federal courts, extending safe- 
guards such as States had expressly recognized for 
protection of the accused. Presentment or indict- 
ment must be made by a grand jury for a capital or 
otherwise infamous crime, as an added prerequisite 
to the trial of crimes by a jury ; ^ though to cases 
arising in the land or naval forces, court-martial 
regularly applies, as well as to State militia while in 
active Federal service. ^ No person shall be twice 
put in jeopardy of life and limb for the same offence ; 
nor shall any one in any criminal case be compelled 
to be a witness against himself.* The accused in all 

Bill of Eights of 1688 was a similar provision as to Protestants, whom 
the King had disbanded while treating Roman Catholics with favor. 

1 Supra, page 33. " Writs of assistance " or general search-war- 
rants were a cause of complaint against George III. before the Revo- 
lution, and the eloquent James Otis denounced them. No sealed letter 
can be lawfully opened except under a search-warrant. But see 96 
U. S. 727 as to lottery circulars; 143 U. S. 110. 

2 Supra, page 175. 

3 158 U. S. 109. 

* Amendment V. ; 142 U. S. 148. It is not "twice in jeopardy" to 
undergo a second trial where the first jury reached no verdict before 
its discharge. If a witness has absolute immunity against future prose- 

13 



194 CONSTITUTIONAL STUDIES. 

criminal prosecutions shall have a right to a speedy 
and public trial by an impartial jury of the State and 
district of the crime. ^ He shall be informed of the 
nature and cause of the accusation, and be confronted 
with the witnesses against him; he shall have com- 
pulsory process for obtaining witnesses in his favor, 
and shall have the assistance of counsel for his 
defence. 2 This final clause at least secures valuable 
rights to the accused which the old common law 
curiously ignored, and all the foregoing safeguards 
were well worth expression. 

No person shall be deprived of life, liberty, or 
property, without due process of law; nor shall 
private property be taken for public use without just 
compensation.^ These are broad maxims constantly 
invoked. Life, liberty, and property comprise those 
personal rights which are universally dearest to the 
individual, and deserve most the law's equal protec- 
tion. "Due process of law" guards those individual 
rights from all sovereign interference apart from 
such correct and orderly proceedings, considerate of 
private right, as are imposed by what has long been 
called "the laAV of the land," — a law sound in policy 
and operating upon all alike.* Constitutional or 

cution, "he may be compelled to testify, as the latest cases rule. 161 
U. S. 691. Cf. 142 U. S. 547. 

1 Various State statutes are constitutional which allow one charged 
with crime to waive voluntarily a trial by jury and elect to be tried by 
the court. 146 U. S. 314. Territorial trials do not require any ascer- 
tained " district," as district relates to States. 138 U. S. 157. And 
see supra, pages 32, 34. 

2 Amendment VI. See 161 U. S. 29. 

Amendment VII. as to jury trials in civil suits at common law has 
been noticed, supra, page 175. In equity and admiralty suits jury 
trials are in the main discretionary with a court for special issues of 
fact only. Nor in the analogous Court of Claims procedure is a jury 
trial essential. 102 U. S. 426. 

^ Amendment V. at close. 

* 153 U. S. 716. 



FIRST TEN AMENDMENTS. 195 

"bill of rights" provisions admirably define those 
rights in America; and both statute and case law 
must respect such fundamental guaranties in order to 
apply "due process of law." ^ The identity in mean- 
ing of this familiar expression with "law of the 
land " — both Anglo-Saxon phrases time-honored — is 
now conceded. 2 

" Taking property for public use without just com- 
pensation" was already forbidden in State constitu- 
tional law, 3 and States to this day preserve the 
organic prohibition under some variations of expres- 
sion. The right of eminent domain in a government 
to appropriate and control individual property for the 
public use and welfare, as in laying out highways or 
erecting public buildings, is admitted, and that right 
is often imparted to municipal and other corporations ; 
but the exercise of such a right in its many manifes- 
tations must respect individual ownership by award- 
ing not an arbitrary but a just recompense, which, if 
not otherwise agreed upon, must be awarded by some 
fair and impartial tribunal.* There may be fran- 
chises or other incorporeal property as well as property 
corporeal subjected to this taking. ^ 

Excessive bail shall not be required, nor cruel and 
unusual punishments inflicted.^ Here we find old 

1 See Cooley, 229-235. Hence do we find statutes practically tested 
by these more fundamental and enduring precepts, whose early inspi- 
ration was drawn from such solemn documents as Magna Charta. Our 
Federal constitution well distinguishes in this respect by ordaining 
that instrument with statutes " made in pursuance thereof," etc., " the 
supreme law of the land." Supra, page 188. 

2 18 How. 272. And see Amendment XIV. 
^ Supra, page 41. 

4 Cooley, 344-357 ; 152 U. S. 132; 160 U. S. 499; 142 U. S. 79. 

5 148 U, S. 312. 

^ Amendment VIII. Electrocution is not a " cruel and unusual 
punishment" within the constitution, but rather in sense a humane 
one. Nor can the solitary confinement of a condemned criminal be 
deemed unconstitutional. 142 U. S. 155. 



196 CONSTITUTIONAL STUDIES. 

barriers renewed against tyranny; for constitutions 
do not so much create new rights in the people as 
prevent abuse under the forms of justice. A 
prisoner once convicted by a jury may be rightfully 
committed withou.t bail pending an appeal. 

IX., X. The last two amendments of the original 
compromise concern reserved sovereign and public 
rights not imparted to this new Federal or Federo- 
national government. Here it is seen that the reser- 
vation made is not so much of State sovereign powers 
as of that general sovereignty of the whole people 
in whose name the instrument of 1787 had ordained 
a new and more perfect Union. ^ Under Articles of 
Confederation, it was the States that prepared and 
entered into the league of Union ; and those articles 
distinctly asserted that the powers not expressly 
delegated to the United States in Congress assembled 
were retained by the respective States. ^ But in 
adapting that assertion to the new constitution by 
way of amendment. Congress purposely put forth a 
phrase less favorable to State sovereignty, by omitting 
the former word "expressly," as though some of the 
newly delegated authority might fairly be implied, 
and by reciting that the powers not delegated to the 
United States by the constitution, nor prohibited by 
it to the States, were reserved to the States respec- 
tively, "or to the people," a pregnant alternative.^ 
So, too, in the preceding article it was declared that 
the enumeration in this constitution of certain rights 
should not be constrained to deny or disparage others 
"retained by the people."* 

In all strict Confederacies, as history teaches, 
either the strongest States rule or anarchy prevails. 

1 Const., Preamble. ^ Amendment X. 

2 Articles, II. * Amendment IX. 



LATER AMENDMENTS. 197 

But in America, under the constitution, the subjects 
of the present Union are not States, but private citi- 
zens, and a peculiar representation tends to equalize 
State influence. To quote from De Tocqueville, the 
United States constitute no longer a Federal govern- 
ment, but an incomplete national government, which 
is neither exactly national nor exactly federal, and 
two sovereignties exist in each other's presence.^ 

XL, XII. The eleventh amendment, which re- 
strains the judicial power of the Union in suits by 
non-resident individuals against a State, has already 
been considered. ^ So also has the twelfth amend- 
ment, which cured some defects in the primitive 
machinery of Presidential elections, without essen- 
tially changing its operation.^ 

XIII.-XV. Of the three final amendments, the 
effect is cumulative towards one general end ; namely, 
to establish in essential citizenship a race once held 
in bondage. The thirteenth amendment, the direct 
logical outcome of our Civil War and of President 
Lincoln's military emancipation, abolished forever, in 
clear and simple phrase borrowed from the old ordi- 
nance of 1787, not negro slavery alone, but all 
slavery and involuntary servitude, within the United 
States or any place subject to their jurisdiction, 
exce]3t for crime upon due conviction.^ 

The fourteenth amendment, further extending the 
scope of social reconstruction which followed this 
first grand achievement and the close of armed con- 

1 De Tocqueville's America, 199. 

2 Supra, page 173. See 140 U. S. 1. 

3 Supra, page 161. 

* Amendment XIII. Asiatic slavery cannot lawfully exist in 
America, more than African, nor can a system of peonage or of 
compulsory adult apprenticeship. 



198 CONSTITUTIONAL STUDIES. 

flict, is partly vindictive or retributive, and yet not 
liarslily so either in expression or enforcement, con- 
sidering the provocation. President Lincoln was 
now dead. The pursuance of a policy towards van- 
quished fellow-citizens passed into other control ; and 
the States lately resisting were compelled to pass 
under the yoke, and sanction new terms of pacifica- 
tion, before normal relations with the Union were 
fully restored. Hence the adoption in turn of the 
fourteenth and fifteenth amendments, by States 
Southern as well as Northern, in a co-operative assent 
under the forms of the constitution. ^ 

Three prime objects are presented by the four- 
teenth amendment: (1) the better protection of the 
emancipated negro as a citizen of the United States, 
under tlie broadening of former definitions ; ^ (2) the 

1 Article XIII. had been unconditionally ratified by thirty-two 
States out of thirty-six. Article XIV. was ratified by thirty-three 
States out of thirty-seveu, and Article XV. by thirty States out of 
thirty-seven. All this was far in excess of the requisite three-fourths. 
The States rejecting amendments, in every such instance, were either 
border slave States, not under military control, or those of the free 
North, where public sentiment opposed the reconstruction policy of 
Congress. 

The constitutional effect of State rejection followed by acceptance, 
and of State acceptance followed by rejection, might have come up for 
discussion had the vote been closer in adopting these three amend- 
ments, for historical precedents were here furnished. (1) Conditional 
ratification is usually to be considered no ratification in a constitutional 
sense ; and sucli beiiig the prevalent belief when the constitution of 
1787 came before the conventions of the original States, reluctant 
State conventions abstained from such action. (2) State acceptance 
is probably constitutional, even though a previous legislature or con- 
vention has rejected, provided such ratification follows within a reason- 
able time. (3) But after a full acceptance, it seems that a State 
cannot riglitfull}^ rescind ratification and then reject ; if, at all events, 
some other State has meanwhile ratified upon the faith of tliat previous 
acceptance. These three statements of doctrine find analogies iii the 
common law of private transactions. 

^ Under the well-known "Dred Scott" decision of 1857 (19 How. 
393), the rights of American citizeuship were denied by the Supreme 
Court to the negro, whether as a slave or a freeman. 



CIVIL WAR AMENDMENTS. 199 

punishment of citizens lately rebellious; (3) the 
integrity of public credit and the public debt of 
the United States, by upholding the claims of loyalty 
and repudiating those of disloyalty under the late 
conflict.^ A broad and enlightened status of citizen- 
ship for the future, based alone upon birth or natural- 
ization in the United States subject to its jurisdiction, 
without other adventitious distractions, is here set 
forth for application, both to the United States and 
to the State wherein the person resides. States are 
forbidden to abridge the privileges or immunities of 
citizens of the United States ; to deprive any person 
of life, liberty, or property without " due process of 
law; " or to deny to any person within local jurisdic- 
tion "the equal protection of the laws.'"^ This 
amendment, as since construed in the courts, does 
not change radically the former relation of State and 
Federal governments ; but leaves still to the several 
States exclusively the protection of all civil rights 
and privileges v/hich are not expressly or by clear 
intendment vested in the Federal government con- 
formably to its nature and attributes.^ Next a new 
apportionment basis for representatives in Congress, 
based upon numbers, fitly supersedes that which in 
1787 compromised as between the free and slave 

1 Amendment XIV. 

2 76. § 1. States subject to the above-expressed constraints still 
retain the police power as before ; and a " civil rights " bill of Congress 
to compel an equal and indiscriminate intercourse of races at hotels, on 
railway cars, or in the schools, exceeds its prescribed authority. 109 
U. S. 3. Separate race accommodations and facilities may be thus 
provided. 163 U. S. 537. 

3 92 U. S. 214; 116 U. S. 252 ; Cooley, 258. This amendment can- 
not override public rights of a State in the nature of an easement. 
160 U. S. 452. Nor State process which affords to all parties alike a 
fair hearing. 150 U. S. 380; 160 U. S. 389. But all citizens are now 
equal before the law; and no racial distinctions, so far as certain 
political rights are concerned, can be permitted. 162 U. S. 565 (as to 
drawing jurors). 



200 CONSTITUTIONAL STUDIES. 

population.^ Negro representation is to Le by num- 
bers henceforth where before it was merely fractional. 
States are not thereby compelled in consequence to 
allow all negroes to vote; but wherever a State 
abridges male suffrage "except for participation in 
rebellion, or other crime," its basis of representation 
in the House shall be reduced proportionally. ^ Be- 
sides this granted disfranchisement of " rebel partici- 
pants " (which the resisting States were never inclined 
to put in force), all former members of Congress 
and State or Federal officers who had engaged in 
rebellion in violation of a previous oath to support 
the constitution of the United States were temporarily 
banished from the public service under this four- 
teenth amendment ; but Congress long ago by a vote 
of two-thirds of each house removed this disability, 
as permitted.^ Finally the validity of the authorized 
public debt of the United States, including pensions 
and bounties for services in suppressing rebellion, 
shall not be questioned; while, on the other hand, 
neither the United States nor any State shall assume 
or pay any debt or obligation incurred in aid of the 
rebellion, nor an}^ claim for the loss or emancipation 
of any slave, but all such debts, obligations, and 
claims shall be held illegal and void.* 

The fifteenth amendment, though framed and pro- 
posed by Congress in turbulent times, rises once 
more to unimpassioned dignity of statement. By 

1 Supra, page 105, "three fifths of all other persons" (i. e., of 
slaves). 

2 Amendment XIV,, § 2. This reduction has never been really 
enforced hy Congress, and there are practical difEculties to determin- 
ing the constitutional proportion in figures. There are Northern as 
well as Southern States which apply an educational test in restraint of 
general suffrage, and thus come equally within scope of the constitu- 
tional threat. 

3 Amendment XIV., § 3. 
* lb. § 4. 



CIVIL WAR AMENDMENTS. 201 

this constitutional change the elective franchise is 
broadened for the late slave's benefit, and a rule is 
made mandatory upon States which Congress had 
previously attempted to establish by policy.^ All 
abridgment of the right to vote is forbidden as to 
citizens of the United States in the present ample 
sense on any account of race, color, or previous con- 
dition of servitude; but otherwise local suffrage is 
still left to each State's regulation as before, with 
only a new Federal right to interfere against racial 
distinctions at the polls. ^ For suffrage here means 
civic participation in government; it is not a natural 
but a political right; and all such participation is 
usually limited by the local government policy.^ 

Such was to be the increased responsibility of the 
Union under these last three amendments that in 
each instance Congress was expressly empowered to 
enforce the article by appropriate legislation,* — a 
provision not to be found in any earlier amendments 
of this constitution. That power is limited, however, 
in meaning to the just scope of each separate amend- 

1 Cf. Amendment XIV., § 2 ; page 200. 

2 Amendment XV. Such a prohibition would apply to State ballot 
laws which exclude a Chinese citizen of the United States, though 
negroes are more immediately concerned, whose citizenship is so 
largely their birthright. A State may still impose property or educa- 
tional tests for the ballot, or disfranchise for crime, but all such tests 
must apply equally to whites and blacks, without racial distinction. 
92 U. S. 214, 542. 

3 See Part III., post, showing State restrictions upon suffrage at the 
present day. Various political reasons induced the passage of this 
fifteenth amendment, and among them that the ballot would prove to 
be educational and a means of enlightened self-protection to the freed- 
men still dwelling among their late masters. But the apprenticeship 
of liberty proves always slow and arduous ; and the first real results 
of this experiment were certainly disappointing. The full constitu- 
tional purpose of this amendment, however, for permanent effect is 
just and noble, and in aid of a humanity more generous than nations 
and kingdoms ever compassed before. 

* Final section in each amendment. 



202 CONSTITUTIONAL STUDIES. 

ment; which, as we have seen, to the disappoint- 
ment, doubtless, of many who aided these constitu- 
tional changes, leaves still, as in 1787, a wide range 
of State discretionary action. The Federal constitu- 
tion, here as elsewhere, is self-executing in most of 
its prohibitions, and requires no legislation from 
Congress to make them binding. ^ This self-execut- 
ing power may be inferred in various other instances 
where the public interest requires it; as in enabling 
the Executive or Supreme Court to maintain due 
independence of Congress, or so that the citizen shall 
stand secure in his sacred individual rights against 
the government. 

1 E. g., in the thirteenth and fifteenth amendments, and in most 
portions of the fourteenth. 



PART III. 
STATE CONSTITUTIONS SINCE 1789. 

I. 

HISTORICAL SEQUENCE. 

From the day that the new Federal constitution of 
1787 went into full effect, that admirable scheme of 
union gained a conspicuousness in the eyes of man- 
kind, and a paramount influence over the destinies of 
the American people that no single State instrument 
could possibly have rivalled. This constitution, as 
perfected by the "bill of rights" amendments which 
Congress promptly proposed and the States as 
promptly adopted, became at once a model for the 
new State constitutions of Pennsylvania and Georgia 
already in preparation; and scarcely a State in the 
whole enlarged Union can be named at the present 
day whose fundamental law does not pattern after 
that immortal instrument in one detail or another. 
But we should bear in mind, notwithstanding, that 
much of that Federal framework is inapplicable to 
American statehood; and further that some of the 
best basic ideas of its architecture were derived from 
thirteen pre-existing State charters in successful 
operation. Free government in America received by 
1789 a redoubled rather than an original impulse. 
Later States have imbibed in their fundamental 
written law much of the spirit and formal expression 



204 CONSTITUTIONAL STUDIES. 

of those leading common wealths whose glory forever 
gilds our earliest annals. Thus Kentucky, Virginia's 
own offspring, took her institutions from the parent 
State. Much of the substance of the healthy Massa- 
chusetts constitution became the flesh and blood of 
those thriving new States which New Englanders 
reared in the free territory northwest of the Ohio 
River; while Vermont, admitted into the Union in 
1791, the first of new-born States with Kentucky, 
chose to pattern her instrument of government very 
closely after that of Benjamin Franklin's Pennsyl- 
vania, which the latter State in 1790 supplanted. ^ 

There are at the present day forty-five full-fledged 
States in the American Union, as against the thirteen 
that originally composed it ; and of that number very 
few can be named more than fifty years old, whose 
constitution has not been repeatedly recast in conven- 
tion and rewritten. Old Massachusetts is the only 
State of them all which can show, like the present 
Federal Union, a primitive constitution still vigor- 
ously operating, Avhich, once adopted in the eigh- 
teenth century, has never been superseded; and in 
both instances amendments since added have wrought 
much practical change. ^ New Hampshire and Ver- 
mont furnish the only other examples of an eighteenth- 
century constitution still in force at all. As time 
goes on, the national flag of this Union seems beau- 
tifully to symbolize the true historical relation of the 
several States to national development. Those thir- 

1 Vermont's constitution of 1786 first made this copy; and her con- 
stitution of 1793 after admission retained the image. 

2 A computation made in 1885 by a careful historical scholar showed 
among other statistics that four States — Georgia, South Carolina, 
Texas, and Virginia — had each lived under five successive constitu- 
tions; vrhile Louisiana adopted her sixth constitution in 1879. These 
figures did not include changes in those States that might have taken 
place during the Civil War. Horace Davis's American Constitutions, 
1 6 ; Johns Hopkins Historical Studies. 



HISTORICAL SEQUENCE, 205 

teen stripes are emblems of thirteen commonwealths, 
the creative source of the whole American Union; 
but the more in number the stars that crowd that 
azure field as time goes on, the less distinctive 
becomes the individual light that twinkles from 
them. 

During the remnant of the eighteenth century 
which succeeded 1789, and while the Federalists as 
a party retained control of national affairs, conserva- 
tism was predominant in the States ; and this indeed 
was the essential reason why Pennsylvania and 
Georgia reformed at once their turbulent establish- 
ments. But the latter State, with a restless popula- 
tion, after amending within six years its second 
constitution of 1789, adopted in 1798 a third new 
draft of government. The great gain of Federal 
example to national harmony and stability had been in 
persuading each of these two States to supersede that 
tumultuous assembly of a single house which had 
exerted much undefined authority, by a truly Ameri- 
can legislature of two branches; though Vermont 
chose to experiment further for herself in that former 
direction. Pennsylvania, besides, chose henceforth 
a single executive, after the true American model, in 
place of a directory, strengthening the independence 
of that department against the Legislature, as the 
Federal instrument had done. 

The Republican era of Jefferson and Madison which 
merged into the stormy war of 1812 with European 
embroilment, after a marvellous season of domestic 
prosperity, and which happily escaped by 1815 with 
peace and renewed national honor, was not produc- 
tive of great fundamental change in the existing 
States. This, however, was the era of new national 
growth westward and in the valley of the Mississippi, 
now rapidly reclaimed from Indian occupation and 



206 CONSTITUTIONAL STUDIES. 

extended by purchase to the wilderness of the Rocky 
Mountains; and west of the Alleghanies, as indeed 
throughout the Union, the impulse towards republi- 
can and uniform government was strong and stead}' . 
Not one of the eighteenth-century States remodelled 
its constitution during the first seventeen years of 
the nineteenth century, though local changes were 
introduced here and there through the process of 
amendment. Two new States, however, Ohio and 
Louisiana, the antipodes of national sisterhood, were 
admitted to the Union during this era. 

From 1816 to 1835 ensues a period of perfect peace, 
recuperation, and internal development, of a growing 
native confidence in popular institutions, and a boast- 
ful disposition to make proselytes of the old world. 
Self-government had vindicated its claims by Ameri- 
can example, and from European systems America 
felt detached forever. Six new States, each with its 
accepted constitution, were admitted into the Union 
during the earlier portion of this era, at the average 
rate of one State a year.^ In a majority of the pre- 
existing States constitutions were largely overhauled, 
and rewritten or vitally amended; and Connecticut 
in 1818 threw aside finally the venerable royal charter 
which had served hitherto for republican govern- 
ment, and clothed herself with a modern constitution 
after the prevailing fashion. The tendency of the 
nineteenth century now became manifest, for one and 
all of these United States, to abolish all property and 
religious tests, to enlarge the franchise for the white 
man, to strengthen each State executive against the 
Legislature, while putting greater curb upon the 
discretion of that latter body, to use the judiciary as 
a political check, and generally to give the reins 

1 Indiana. Mississippi, Illinois, Alabama, Maine (by separation from 
Massachusetts), Missouri, 1816-1821. 



HISTORICAL SEQUENCE. 207 

more completely into the hands of the people, so 
that the governed might become the governing also. 
By this time the example of American independence, 
with its written proclamation of human rights, 
became the solace and inspiration of the feebler 
Spanish-American colonies to the south of us. 

To this era succeeded 1836-1861, — a period when 
a still more pronounced and combative democracy 
wrestled with conservatism, and other bitter strifes 
went on, until the slavery conflict, forcing its own 
dangerous rivalry to the front, precipitated the whole 
United States into a civil strife so terrible that it 
seemed almost as if the sun of the great republic had 
gone down forever in blood and sectional dissolu- 
tion. In most States, meanwhile, the old barriers of 
caste and property were broken down, and through 
the brief and impatient tenure that ensued, office- 
holding lost much of its traditional dignity and sta- 
bility. Not only governors and the high executive 
officials were now subjected to the will of -com- 
mon voters, as expressed at the polls, but judicial 
incumbents as well. Party spoils were proclaimed 
the prize of party victors ; and with wealth increas- 
ing besides, which sought special favors from public 
officers and the Legislature, corruption grew, which 
honest voters strove to repress by straining tighter 
the cords of fundamental restraint. Splendid abili- 
ties, devoted love of Union, struggled in the souls 
of great statesmen with the weakness of compromise 
and a fatal tendency to palter public interests for 
temporary advantage, while the arrogance of material 
strength tempted to trample upon the rights of 
weaker nations. The star of manifest destiny for a 
while led on to continental empire ; but though the 
Union triumphed steadily and enlarged its broad area 
on the Pacific, territorial aggrandizement was not 



208 CONSTITUTIONAL STUDIES. 

honorable, as it had been in the earlier and simpler 
years of the century. A swarm of new States 
swelled the catalogue of written constitutions for 
this portentous era; California, the seventh among 
them, disturbing in 1849 the former equipoise of 
free and slave States for admission; and the pro- 
tracted struggle over Kansas, after the repeal of 
the Missouri compromise, arousing the most vehe- 
ment sectional passion. The aggregate number of 
newly admitted States for this period was ten, two 
of them furnishing the first fruits of Mexican 
dismemberment. ^ 

By 1861 democratizing influences had nerved our 
whole people, and taught them a self-reliance which 
was to become yet stronger. Had it been otherwise, 
a civil war, which drained the resources of States 
arrayed in deadly strife, would have ruined this 
Union. Each adversary fought with courage and 
determination, but victory crowned the stronger and 
in sight of Heaven the worthier cause. During 
those four years of fight little heed was given by the 
Federal government to State extension ; but Virginia 
being torn asunder in the struggle, a loyal and sepa- 
rate State, known as West Virginia, was organized 
in 1862, and Congress admitted in 1864 from the 
Rocky Mountain region the sparse mining State of 
Nevada. The period of southern State reconstruc- 
tion lasted for about twelve years from the submis- 
sion and disarmament of that section in April, 1865. 
New State constitutions now forced southern inhabit- 
ants not only to acquiesce in the legal extinction of 
slavery throughout the Union, but to repudiate, with 

1 Arkansas, Michigan, Florida, Iowa, Texas, Wisconsin, California, 
Minnesota, Oregon, and. Kansas. The numerous proposed constitutions 
of this last-named State prior to its admission, record the desperate 
struggle of free and proslavery settlers for the mastery. 



HISTORICAL SEQUENCE. 209 

the repeal of their several ordinances of secession, 
the whole doctrine of State sovereignty upon which 
the theoretical right to secede had been based. 
Other conditions yet more galling were imposed by 
amendments of tlie Federal constitution, whose 
supremacy was henceforth unquestioned. ^ 

From the accession of President Hayes in March, 
1877, the rehabilitation of the once insurgent States 
became complete. Military interference in the south- 
ern section now ceased, and the Union rapidly 
regained its normal condition with a former obstacle 
to national harmony now fairly removed. A new 
era of fraternal reconciliation now commenced such 
as the world has seldom witnessed. Federal amnesty 
was freely accorded by Congress and the President, 
while Southern States hastened to blot out as they 
might the disabilities of their military champions 
under their own organic law. Meanwhile at the 
North and in the growing West States always loyal 
have renovated their local institutions with a stronger 
confidence than ever in the permanence of the 
American Union, and with a fuller determination to 
hold government, State or Federal, as closely amen- 
able as possible to public opinion. The appointing 
of all high officers of the State has been largely 
taken from chief magistrates and the Legislature. 
The Chief Executive, now the sole choice of the 
voters, is viewed more than ever as the vicegerent of 
popular authority. Fundamental limitations accu- 
mulate upon legislation and the incurring of public 
debt. Even the State judiciary, though strengthened 
against rash and tumultuous assault, is made to feel 
its final dependence upon the voters; and the pas- 
sionate desire of an American democracy to control 
and limit public government, at the present day, is 

1 Supra, page 198. 
14 



210 CONSTITUTIONAL STUDIES. 

in strong contrast with the deferential and implicit 
confidence which the common people reposed in their 
representatives, those especially of their legislatures, 
a century ago.^ Those brief instruments of State 
government, in the earlier era, which left a skeleton 
outline for legislatures to fill up at will, have given 
place long since to lengthy constitutions, full of local 
specifications and of details jealously worked out by 
description, like a huge act of legislation. 2 

1 The new States admitted iuto the Uuion from 1865 to 1897 are as 
follows : Nebraska (1867), Montana (1889), North Dakota (1889), South 
Dakota (1889), Washington (1889), Idaho (1890), Wyoming (1890), 
Utah (1894), Total present number of States in the Union, forty-five. 

2 Some have severely criticised the present distrustful and prolix 
tendency of expression in our latest State constitutions. One of the 
ablest of such critics, the late Governor William E. Eussell, of Massa- 
chusetts, in an address at Yale University (1894), sets forth earnestly 
some of the most forcible objections to such full and unphilosophical 
detail in an organic instrument. But something may be said on the 
other side. The notable simplicity of our Federal constitution, on which 
such critics dwell, is hardly in contrast ; for its framers, after much 
discussion and practical experience of the particular problem, under- 
took merely to draw out better and define the organic powers adequate 
for maintaining an efllcient Union Avith a few supreme concerns com- 
mitted to it ; while in tlie several State governments remains that 
great residuary mass of functions and authority, such as changes and 
develops of necessity with the evolution of society. State legislation 
for such vast and diversified concerns must necessarily grow and in- 
crease in complexity as society multiplies and concentrates its popula- 
tion ; and so, too, must the State fundamental law, Avhich controls that 
legislation, take on a like iucongruous growth of provision. Massa- 
chusetts is praised for keeping to the old and simple landmarks of con- 
stitutional government ; and yet in that roving discretion still left to 
the IMassacliusetts Legislature under an ancient constitution, we see 
the cause and occasion of those constant and prolonged annual sessions 
from which most other States are now happily exempt ; and the fact, 
for instance, that mere statute enactment in tliat State promotes private 
incorporation under general laws, while State constitutions elsewhere 
compel it, does not deter the schemers from constantly seeking special 
privileges and modifications for themselves, and thus at least consum- 
ing the public time, if not inducing worse dangers. Tlie true course 
for States seems to be to avoid the evils of too close a specification, on 
the one hand, in a written framework of government, and too lax a 
discretion to transient representatives of the people on the other. 



II. 



METHODS OF FUNDAMENTAL ADOPTION AND 
■ CHANGE. 

How little stress, in framing and putting into 
public force a State constitution, was laid upon the 
direct approval of the voters prior to the Federal 
example of 1787, or indeed, in that Federal instru- 
ment itself, we have already remarked. ^ American 
statesmen in those days thought it a sufficient resort 
to first principles for the people to choose special 
representatives to a convention — since a convention 
derived a deeper sanction than a legislature — and 
then leave that convention to its own unfettered and 
final discretion. To that earlier practice of the 
States Massachusetts and New Hampshire are seen 
to have constituted the only clear exception ; but the 
more fundamental sanction which those States chose 
so early to rest upon has gradually become the com- 
mon condition. In one or two very recent instances, 
to be sure, where a prime and perplexing object of 
constitutional reform has been to reduce a voting 
element,^ a State convention has assumed to establish 
as well as shape out the new organic law. But for 
real homogeneous communities of these United States, 
where the majority rules, the true sanction of a con- 
stitutional convention must consist, henceforth and 

1 Supra, pages 47, 185. 

2 As recently (1896) in South Carolina, where there is a large negro 
element of population, and (1897) in Delaware. 



212 CONSTITUTIONAL STUDIES. 

forever, while self-government sustains itself, not in 
the choice of constituent representatives alone to that 
convention, but in the ultimate approval at the polls 
of that convention's work as formally submitted. 

The change in this popular direction came slowly 
in America, and long after the nineteenth century 
had begun. ^ New Hampshire's new constitution of 
1792 went to the voters, and was ratified by them, 
like her earlier one. But this was an exceptional 
instance. On the other hand, the amendments of a 
New York convention in 1801, artfully procured, 
were promulgated as final without any such submis- 
sion ; and so was it with new constitutions somewhat 
earlier, of South Carolina in 1790, Delaware in 1792, 
and Georgia in 1798.'^ Pennsylvania's convention 
of 1789 had framed a radically new instrument of 
government; and after adjourning in 1790, that the 
people might examine but not pass upon the work, 
it reassembled a few months later and formally pro- 
claimed this new constitution in force. With States 
newly admitted to the Union at the close of the last 
century, the course pursued was the same. Conven- 
tions framed and put in force the Kentucky constitu- 
tions of 1792 and 1799; those of Vermont in 1793 
and of Tennessee in 1796 were ordained in like 
manner. 

Ohio's first constitution (1802), followed by that 
of Louisiana (1812), each framed by a territorial con- 
vention under an enabling act of Congress, but not 
submitted to the people, recognized among other 
provisions the right of a legislature^ to submit to 
the people on future occasion whether there should 

1 See notes to Poore's Constitutions, which the official text of these 
early instruments serves to confirm. 

2 As also the Georgia amendments of 1795. 

3 In Ohio by a two-thirds vote ; in Louisiana by a majority. 



FUNDAMENTAL ADOPTION 213 

be a constitutional convention ; but as to the popular 
referendum of such a convention's work the instru- 
ment was silent.^ It was the era next succeeding 
the peace of 1814 that saw the first decided advance 
since 1787 of the popular submission doctrine in the 
United States. Connecticut, in 1818, when setting 
aside the old colonial charter, submitted, after the 
Massachusetts and New Hampshire fashion, her new 
constitution to the people, and that instrument was 
ratified at the polls. Next, New York in 1821 
invoked the same popular test to the adoption of a 
new framework of government. Massachusetts, in 
1820, held a convention and proposed important 
changes in the organic law, some of which carried at 
the polls while others miscarried. Great Southern 
States, from 1830 to 1835, such as Virginia, North 
Carolina, and Tennessee,^ held conventions, each of 
which framed fresh constitutions, and submitted 
them to the people of the State, by whose majority 
vote each and all became ratified and effectual. 

Pennsylvania's convention of 1790 had been called 
at discretion on the seventh year by the "Censors," 
a popular council revived in Vermont's new constitu- 
tion, just after Pennsylvania had dispensed with it. 
Other old States, whose Revolutionary constitutions 
had made no express provision for change or super- 
sedure, felt an inherent competence to summon a new 
convention at any time for either purpose. ^ But, 
following the example set by the Federal constitution 
and some still earlier State instruments, we see 
specioal provisions made at once for the process of 
simple constitutional amendment without calling a 
convention at all. Thus Delaware (1792) adopted 

1 Tennessee's first constitution of 1796 was in this respect similar, 
and so were those of Kentucky and Delaware in 1792. 

2 Also, apparently, Mississippi in 1832. 



214 CONSTITUTIONAL STUDIES. 

the Maryland rule of 1776, long favored in tlie 
Union, that one legislature shall propose an amend- 
ment by a specified vote exceeding a bare majority, 
and the next after an intervening general election 
shall pass that amendment similarly, and thereby 
give it full force. ^ Such a mode of amendment, by 
which Maryland herself made four organic changes in 
the eighteenth century, without calling a convention 
at all, is seen to eliminate the direct sanction of the 
voter. But when Connecticut, New York, and 
Massachusetts made united demonstration about 1820 
in favor of submitting directly to the people all 
constitutions framed in convention, those States ini- 
tiated likewise by co-operation the popular reference 
of specific amendments. ^ Each of these three States 
at that time improved upon the old Maryland plan of 
1776 (which, like our Federal plan, dispensed with 
conventions for mere amendment) by requiring: (1) 
proposal of the change by one legislature; (2) re- 
newed proposal by a succeeding legislature ; and (3) 
final approval of the change by a majority vote of the 
people. And this, with occasional slight variations, 
may be considered the modern American mode still 
in vogue for changing a State constitution in specific 
particulars where no convention, no rewritten docu- 
ment of government, is thought desirable. 

Thus, then, after the United States had fulfilled a 
third of their nineteenth-century orbit, and emerged 
into the full splendor of confident democracy, new 
constitutions and even amendments to existing instru- 
ments, whether initiated by convention or legisla- 
ture, drew their vital breath, not from representatives 
of the people, but from the final sanction of a popular 

1 Supra, page 49. 

2 Cf. Alabama's constitution of 1819 on this point, similar but less 
explicit. 



FUNDAMENTAL ADOPTION 215 

majority at the polls. All State constitutions, in 
fact, since 1835, have been thus established as matter 
of course, with the rarest of exceptions. ^ A New 
York convention in 1846 invoked such political 
approval of its work, though the previous constitu- 
tion had not literally required any test of the kind. 
Even in Florida (1838-39) the constitution under 
which that territory, once Spanish, became by 1845 a 
State, was submitted by schedule to its voting inhab- 
itants. The people of Wisconsin territory rejected 
summarily the organic instrument prepared for State 
admission by a convention in 1846, and accepted a 
later one in 1848. Rhode Island's constitution of 
1842, the date when the last of our primitive United 
States cast off its colonial charter, was a peculiar one 
in many respects, having an English flavor of local 
customs ; and a majority vote at the polls gave this 
new instrument validity, though no amendment was 
to take effect in the future without a three-fifths 
popular assent. During the busy decade of constitu- 
tional change which preceded Civil War, this funda- 
mental submission, whether in State or territory, in 
old or new jurisdictions, had become so sacred that 
while the Free-Soil controversy raged hottest on the 
territorial soil of Kansas, a fair-minded majority in 
Congress, sustained by the public opinion of both 
sections, united in refusing recognition to a constitu- 
tion which in 1858 a territorial convention had sought 
arbitrarily to ordain as the price of statehood; and 
submission to a territorial vote being thus compelled, 
the instrument was buried in ignominy. 

So, too, has it been with State constitutional 

^ It appears that Arkansas was admitted as a State in 1836 with a 
constitution promulgated simply by the convention which framed it, 
harmonizing in that respect with Missouri's neighboring action in 1820 
under a constitution quite similar. Recent exceptions in States where 
unpopular change is contemplated are noted supra, page 211. 



216 CONSTITUTIONAL STUDIES. 

amendments wherever this later period has given 
opportunity for regulating anew the amendment 
methods. The Arkansas constitution of 1836, by 
way of solitary exception, embodied the old-fashioned 
scheme of leaving all changes to be wrought out 
completely in successive legislatures.^ Elsewhere 
each new or remodelled State constitution required 
all new amendments to be submitted to a popular 
vote. "Each amendment," says in effect the New 
Jersey instrument of 1844, "shall be distinctly pre- 
sented for vote, and no amendment oftener than once 
in five years." American State practice to this day 
prefers that amendments shall originate in the Legis- 
lature, and pass both houses by some fractional vote 
greater than a quorum majority. Usually, perhaps, 
a second legislature must after a similar vote con- 
firm the proposition ; but in either case, a referendum 
at the polls settles finally the fate of the proposed 
organic alteration. 

Once more, as a sign of increased deference to the 
people, we find our modern State constitutions ex- 
pressly providing that the people shall not only vote 
upon the organic product of any future convention, 
but upon the preliminary question whether any con- 
vention shall be held in the State at all. New York 
in 1846, liberally favoring the inherent control of 
republican government by the people for the people, 
declares that every twentieth year, as well as at 
intervening times when the Legislature may provide, 
the people shall vote whether to hold a convention 
or not, and the decision of the majority shall prevail 
on that point. That policy has been followed else- 
where with excellent effect. ^ Other States, however, 

1 Here, again, Arkansas stood by the example supplied in 1820 by 
its neighbor, Missouri. 

2 See, e.g., Ohio's constitution of 1851, that of Kansas, 1859, and 



FUNDAMENTAL ADOPTION 217 

more conservative on that point, still prefer specific 
amendments, by initiation in the Legislature, to any 
such radical disturbing influence as a remodelling 
convention. But conventions themselves choose 
often to propose amendments rather than draft the 
whole fundamental law anew. The Illinois conven- 
tion of 1848 broke up its work into parts for separate 
submission, as New York and other States have since 
done, with good effect, in order that the rejection at 
the polls of some doubtful propositions might not 
prevent a legal acceptance of the worthy residue. ^ 

It would be interesting to consider how far funda- 
mental conditions expressed in any sovereign consti- 
tution as irrepealable can have binding force upon 
posterity. Such conditions as recognize the Union 
paramount may be thought obligatory enough with- 
out any State expression, and all such conditions in 
a government are understood to be subject to the 
right of revolution. But other provisions expressly 
declared unamendable or irrepealable may be found, 
not in the original Federal instrument alone and 
those of original States, ^ but regularly upon the 
admission of new States to the Union formed out of 
the national territory by way of a compact with 
Congress.^ A compact to be legally repealed requires 
the assent of both parties ; but no such compact exists 

Maryland's in 1867. To such provision we owe some excellent changes 
in New York's fundamental law. 

1 During the ten years which preceded our Civil War the political 
convenience of taking the sense of the people separately upon doubtful 
propositions became obvious when new States, such as Kansas, Oregon, 
and Minnesota, were to be admitted. 

2 See supra, pages 49, 187. 

3 Such, for example, by way of compact with the Union, as these : 
never to tax the lands of non-residents higher than those of State resi- 
dents ; and that local and adjacent waters shall be a common highway 
for the whole Union, etc. 



218 CONSTITUTIONAL STUDIES. 

between the present people of a State or nation and 
their own posterity, and mutual repeal in such a sense 
is as impossible as mutual establishment. No human 
ordinance can rightfully claim perpetual fulfilment. 

To take American institutions in their latter-day 
sense aiul throughout this renovated Union, now 
happily in normal working order, the State constitu- 
tion is become practically a law which the people 
make directly by voting at the polls upon a draft 
submitted to them;i meaning by this, however, an 
enactment fundamental and obligatory upon all State 
departments, legislature, executive, and judiciary, 
save as to possibly transcending the supreme Federal 
constitution. Hence it becomes to this extent a 
direct exercise of popular sovereignty, a government 
by plebiscitum. While our Federal constitution still 
can only be amended by three-fourths of the States 
ratifying after the old method of separate convention 
or legislature (in practice the latter, as Congress 
has hitherto exercised its option),^ and there is no 
plebiscitum, no polling of the whole United States at 
all, a State constitution may usually be changed by 
a bare majority vote at the polls, however small, 
after the two legislatures in succession, or (as in 
some instruments), a single legislature has put the 
proposed amendment before the people.^ The last 
"Council of Censors," with authority to call conven- 
tions or amend, has vanished from the States.* And 
in the lengthy constitutions with inflexible regulation 
on matters liable to fluctuating opinion, which now 
so often confront us,^ conventions show some of the 

1 See Bryce's Commonwealth. 

2 Supra, page 186. 

^ The requirement of a minimum number of votes cast seems a fair 
one for fundamental changes. And see Delaware (1831). 
* See Vermont's amendment (1870) to constitution of 1793. 
^ Among examples of growing verbosity taken at random from 



FUNDAMENTAL ADOPTION. 219 

temporizing, lobbying, and log-rolling propensities 
which they criticise as follies in a legislature. The 
people of a State choose the convention, but members 
of that body are the architects and joiners of the new 
organic framework. All this points in favor of mak- 
ing concrete submission of a new scheme by separate 
propositions where there is uncertain sentiment; and 
in favor of proposing an occasional amendment, as 
far as possible, in preference to holding conventions 
at all. For all this makes the people more nearly 
the originators of their own system. The public 
mind does not readily grasp the full purport of a 
complete instrument de novo, nor balance the prob- 
able evils against the probable advantages; but it 
seizes readily upon specific corrections of specific 
evils, illustrated by some actual state of facts which 
has just aroused the common interest. Instead of 
being eager to summon conventions and re-enact the 
whole body of fundamental law, our people have 
generally proved conservative and slow to act, except 
in plain emergencies. 

State constitutions by no means the latest, we find Pennsylvania's in- 
strument of 1873 occupying twenty-three pages of print against ten in 
that of 1838; Maryland's, of 1867, with thirfcy-two against twenty-one 
in that of 1851 ; and Missouri's, of 1875, with thirty-three against fifteen 
in that of 1820. The magnitude of new subjects for public attention, 
such as railways, manufactures, and municipal government, largely 
accounts for such a growth. See supra, page 210. 



III. 

STATE FUNDAMENTAL MAXIMS. 

Of State fundamental maxims in the nature of a 
declaration of rights, those first familiar through the 
Revolutionary instruments of Virginia, Pennsylvania, 
Maryland, and other members of the original Confed- 
eration have left their lasting impression in Amer- 
ica. The sacred formulas in the preamble of our 
Declaration of Independence find like recognition, 
besides those with dispersed lustre in the original 
text of the Federal constitution, or blazoned together 
as its first ten amendments. Political truths, like 
those in the Revolutionary declarations of rights, 
gained double circulation and credit in the land when 
stamped as the new coinage of the Union. These 
bosom truths need here no repetition.^ In one form 
of statement or another, and with variations of expres- 
sion suggested by time and circumstances, they are 
to be found in all succeeding constitutions, whether 
of old or new States ; most American commonwealths 
still choosing to devote in their organic code a special 
chapter to such recital. But of basic State maxims 
originating since 1789 it is hard to draw out any 
catalogue; and the more so because States in recent 
years have taken so greatly to limiting specifically 
the range of legislative or judicial authority in pro- 
hibitions which themselves might often be thought 
tantamount to formulas of good government. For 

^ See supra, page 30. 



STATE FUNDAMENTAL MAXIMS. 221 

whenever a people safeguard their individual rights 
against public action in one department of sovereignty 
or another, then in a sense one may say that the " bill 
of rights " maxim finds expression. With this caveat.^ 
let us enter upon the task of a brief enumeration, 
favoring most as fundamental maxims those which 
constitution builders have set apart in that category. 

The Montesquieu separation of threefold powers is 
still inculcated constantly in American State consti- 
tutions ; nor has modern civil experience devised any 
radical departure from that method for carrying on 
popular government. Among the few formulas first 
derived from Federal example and the constitution 
of 1787, we may note with satisfaction the spread 
among States of that which forbade laws impairing 
the obligation of contracts. The right of petition, 
on the other hand, embodied by amendment only in 
this Federal instrument, spread into continental 
acceptance through State example.^ Everything 
ranged under the head of " great and essential prin- 
ciples of liberty," says the Pennsylvania instrument 
of 1790 for better assurance, " is excepted out of the 
general powers of government, and shall remain for- 
ever inviolate." Perhaps the earliest grand idea to 
propagate vigorously in this new era of complete 
Union was that (already advanced by Pennsylvania 2) 
which abolished all imprisonment for debt where the 
debtor in good faith gave up whatever property he 
had, — a doctrine which Vermont, Kentucky, and 
Georgia all announced by constitution in the eigh- 
teenth century, and which under statute or funda- 
mental law is since the doctrine of the whole United 
States. 

1 Pennsylvania and Massachusetts, supra, page 35. Pennsylvania's 
instrument of 1790 once more included Penn's colonial clause as to 
deodands and suicides. See page 35. 

2 Page 36. 



222 CONSTITUTIONAL STUDIES, 

An accused person acquitted shall pay no costs 
unless the majority of judges certify that there was 
probable cause for prosecution.^ Banishment as a 
State punishment is prohibited; and so is corporal 
chastisement for civilians. ^ Indiana announced by J 
1816 that a man's "particular services," as well as 
his property, should not be taken without "just com- 
pensation," — a maxim, by the way, to which Ohio in 
1802 had given a novel turn from the stand-point 
of public advantage.^ Illinois in 1818 mingled with 
the familiar recital of other private rights that of 
reserving commons forever to the people, meaning 
by commons lands that were once granted in common 
to any town or community by competent authority.* 
Truth as to the facts shall be an admissible defence 
in all libel suits. ^ 

While the new national tendency was steadily to 
dispense with special qualifications for civil office or 
the Legislature, tenure of office for life or for good 
behavior, even in the case of judges, became gradu- 
ally obnoxious to public sentiment, as the newer con- 
stitutions gave expression ; Virginia herself extending 
to the judiciary by 1850 the " return into that body 
from which they were originally taken," and the 
election test " at fixed periods " to which the legisla- 



1 Delaware, 1792. 

2 Ohio, 1802. Delaware (1897) alone retains the antiquated pillory 
and whipping-post. Flogging in the army or navy or the merchant ser- 
vice has been a subject for later repression by Congressional enactment. 

3 Private property shall always be subservient to the public welfare, 
provided just compensation be given. 

* See constitution of 1848, permitting a legal division of such com- 
mons by suitable procedure in the courts. 

5 Mississippi, 1817 and 1832. New York and other leading States 
made such a change in the common law of libel by simple legislation 
early in the century. " Unless published from malicious motives " is 
the prudent qualification of Rhode Island's constitution (1842) and 
that of some other States. 



STATE FUNDAMENTAL MAXIMS. 223 

tive and executive departments alone were declared 
subject in her famous declaration of 1776.^ Missis- 
sippi had much earlier proclaimed as the universal 
tenure of State office some limited period of time, 
provided good behavior shall continue so long. 2 
" No office shall be created of longer tenure than four 
years," is the rigorous rule which Indiana proclaimed 
in 1851 ; and yet while holding to the older American 
prohibition of more than one lucrative office at a 
time in the same individual, this Indiana convention 
made stated exceptions in a few deserving instances. 
No lieutenant-governor, declares the Michigan con- 
stitution of 1851,^ shall be eligible to any office or 
appointment from the Legislature, except he be 
chosen to the United States Senate. Property and 
religious qualifications, whether for office or the right 
of suffrage, were now disappearing. Extra compen- 
sation for public officers or contractors was sometimes 
jealously forbidden, and public salaries were ordered 
paid, without increase or diminution during the 
incumbent's term of office.* 

As our nineteenth century nears its meridian, we 
see stronger safeguards than before insisted on for 
individual security against judicial process. "The 
writ of habeas corpus shall in no case be suspended," 
observes that Vermont constitution of 1836, which 
establishes tardily a legislature of two houses. 
Writs of error shall never be prohibited by law.^ 
Criminal indictments must be framed for prosecution, 
and no one shall be compelled to criminate himself.^ 
For the trial of criminals by peers and a jury, the 

1 Supra, page 37. 

2 Mississippi, 1832. 

3 With perhaps the fresh recollection of some specific abuse. 

4 Wisconsin, 1848. SeeVIIL, posL 

5 Wisconsin, 1848. 

6 Cf. U. S. Const., Amendment V. 



224 CONSTITUTIONAL STUDIES. 

common law fairly retained its magna charta sanctity ; 
but as to civil litigation some of the former reverence 
faded. " Jury trials may Idc waived by agreement in 
civil cases," is the new maxim of various State con- 
stitutions i^ "in civil suits not over fifty dollars" is 
another experimental change, the Legislature may 
authorize trial by a jury of six men.^ "In all crimi- 
nal cases," declares Indiana's constitution in 1851 
somewhat vaguely, " the jury shall have the right to 
determine both the law and the facts." Oath or affir- 
mation shall be such as most consists with binding 
the individual's conscience.^ No person arrested or 
confined in jail shall be treated with unnecessary 
rigor. No court shall be secret. " No person shall 
be incompetent as a witness by reason of his religious 
belief " is a maxim of the New York constitution of 
1846, soon to be adopted elsewhere, as amplifying 
religious liberty of conscience, already an accepted 
rule. Amendments of the Federal constitution for 
protecting those accused of crime find an increasing 
State acceptance. "No imprisonment for debt" 
becomes now an unqualified State assertion;^ and 
more than this, a new privilege develops in the 
legal exemption from seizure and attachment (since 
nearly universal) of a certain reasonable amount of 
property for every debtor, "that he may enjoy the 
necessary comforts of life."^ California in 1849 
specified homestead exemptions for heads of families ; 
and recognizing the new" conflict now waging in the 
Atlantic State legislatures for married women's 
rights, though not without a Spanish-American pre- 

1 New York, 1846; California, 1849. Contra, Illinois, 1848. 

2 New Jersey, 1844. North Dakota's constitution (1889) allows of a 
verdict by nine jurors. 

^ Indiana, 1851. 

* Wisconsin, 1848; Texas, 1845. Cf. page 221. 

S Wisconsin, 1848. 



STATE FUNDAMENTAL MAXIMS. 225 

disposition to the civil law of matrimonial matters, 
that earliest of Pacific States sanctioned by its 
primitive constitution the wife's separate property. 
In the cause of sound morals, duelling had by this 
time been fundamentally forbidden in m.any States ; 
and lotteries, too, once so popular a means of raising 
money for civil and religious objects.^ 

Among State organic provisions of this middle 
epoch of the century were several whose object was 
to break up finally manor and patroon systems of 
landholding, such as had lingered in New York, 
to abolish feudal tenures, and further to discounte- 
nance all leases longer than a single generation. ^ 
Methods v/ere now prescribed for assessing damages 
wherever property might be taken for public uses, 
and the tender of compensation was to precede the 
taking.^ Maryland's early precept enjoining equal 
and uniform taxation was henceforth seen formulated 
in one set phrase or another. Existing rights of 
commons, "fishery and the rights of shore," found 
also fundamental protection.^ 

By the middle of this century bills of rights had 
become largely eclectic, whatever the pride of a con- 
vention in changing old phraseology; new States 
copied or selected from other constitutions in force 
in older States ; and in one or two instances of that 
epoch maxims had been scattered through an organic 
instrument without any distinct grouping.^ But now 
appear new and express proscriptions of race or 

1 See various constitutions, 1836-1850. 

2 No lease beyond twelve years. New York, 1846. No lease longer 
than fifteen years. Wisconsin, 1848. The law of primogeniture or 
entailments shall never be in force. Texas, 1845. 

3 See Michigan, 1850. Cf. page 36 ; Indiana, 1851. 
* Rhode Island, 1842. Cf. page 36. 

5 See Michigan, 1850, 

15 



226 CONSTITUTIONAL STUDIES, 

nationality, due to the drift of political conflict for 
the next ten years. Indiana, though always a free 
commonwealth, declares that no negro or mulatto 
shall come into the State ; ^ while free Oregon, upon 
being admitted as a State, pronounced with rude 
dogmatism that no negro, Chinaman, or mulatto ^ 
sliould have the right of suffrage, and invited " white 
foreigners " only as settlers. 2 To the time-honored 
right of free people to bear arms ^ was now annexed, 
in States whore deadly brawls were common, the 
qualification that carrying concealed weapons was 
not to be included.* 

Women's rights have advanced boldly in the 
organic favor of American States remote from our old 
Atlantic slope. Many were the States, from 1850 
onward, that protected the separate property of 
married women by constitutional maxims, as Cali- 
fornia had done,^ while in all the other States legis- 
lation has come to establish such a policy without 
constitutional announcement. And since the Civil 
War woman's emancipation, so styled, from her com- 
mon-law conditions, has progressed towards active 
participation in a government controlled originally by 
man (done, and yet not to positive victory. 

"In the words of the Father of his Country," 
quaintly recites the preamble of Rhode Island's con- 
stitution in 1842, "we declare tliat the basis of our 
political systems is the right of the people to make 

1 Indiana, 1851. 

2 As to Cliiiiese exclusion, Oregon appears to have gained the start 
of California in its organic law; and it wonld appear from this first 
constitution that mining resources were anticipated in that northerly 
I'acific State beyond what ever became revealed. 

8 Supra, i>ago 192. 

4 Kentucky, IS.'iO. 

^ E. ()., Michigan, Indiana, Oregon, Kansas, during 1850-1860. 
Kansas in 1859 went still farther in declaring the rights of husband 
and wife ecjual in the custody of tlieir children. 



STATE FUNDAMENTAL MAXIMS. 227 

and alter their constitutions of government," but that 
what exists at any time is obligatory on all till 
changed by an explicit act of the whole people. ^ 
Indeed, the recognized American doctrine, with 
racial qualifications, perhaps, in the slaveholding 
^ States, appeared more clearly as time went on that 
all power was inherent in the people with the right 
fundamentally to make and alter whenever the public 
good should require it, — this proviso being however 
understood, that the government should continue 
republican and popular in form. Soon after the 
downfall of human slavery in 1865 we find maxims 
in the State instruments of reorganized and border 
States, formerly slaveholding, which announce hence- 
forth the common faith of universal brotherhood ; and 
with a repudiation of all property in man, repudiat- 
ing also all political distinctions founded in race or 
color. Various States in this new era recanted 
formally the heresy of secession, and declared alle- 
giance to the Union henceforward as paramount to 
all claims of State sovereignty. ^ If in this new 
and reunited national era, the latest of all, other 
maxims of fundamental right are worth recording as 
State constitutional expressions, they are suggested 
mostly by the growth of wealthy private corporations 
or the difficult adjustment of municipal government 
to the great and growing cities. Civil rights of the 
negro make an additional element.^ 

Except for the racial obstructions noted, aliens 
have been liberally regarded in the United States 

1 Ehode Island had just suppressed the Dorr Rebellion. 

2 See South Carolina, 1868; Virginia, 1870. Nevada, when ad- 
mitted in 1864 as a new free State, had pronounced fundamentally 
against the secession theory while civil war was raging. 

8 Thus the right of all citizens to travel on the public highways has 
reference to discriminations of race and color by common carriers. 
Mississippi and Louisiana, 1868. 



228 CONSTITUTIONAL STUDIES. 

for the most part. But some reaction has set in 
against foreign ownership of lands and corporate 
stock, as one or two of the latest constitutions 
indicate.^ 

The enlightened lead of the old thirteen States, 
and especially New England, in public schools and a 
liberal education, was not lost upon the new States of 
the nineteenth century, whose earliest constitutions, 
Ohio's, for instance, developed the same policy. 
Most new States, in fact, formed out of national 
territory, received in succession from Congress when 
admitted to the Union generous grants of the public 
land as an endowment in the cause of learning. 
Equal participation by the inhabitants in such 
endowed education, we see expressly enjoined in 
Ohio's first constitution.'^ These Congressional grants, 
for common schools and a graded system of education 
capped by a State university, were usually stated to 
be in consideration of certain fundamental advantages 
promised to the whole Union under the compact of 
State admission; and public library funds from the 
sale of public lots was another stipulation in early 
instances.^ Michigan, of the grand tier of new 
northwestern States, broadly declares in 1835 by 
fundamental law that the Legislature " shall encour- 
age, by all suitable means, the promotion of intel- 
lectual, scientific, and agricultural improvement," 
California by 1849 employing a similar expression.* 
While '' Native-Americanism " swayed American poli- 
tics somewhat later, the dread of Roman and foreign 
influence appeared in State systems of education, 

1 Washington, 1889. 

2 Ohio, 1802. 

8 See Indiana, 1816. 

* This is after the Massachusetts example, set as early as 1783. 
Supra, page 42. 



STATE FUNDAMENTAL MAXIMS. 229 

All money raised by taxation for the support of pub- 
lic schools was directed by a Massachusetts amend- 
ment of 1855 to be applied exclusively to schools 
under legal and public control, and not to those of 
any religious sect; ^ and such continues the American 
rule to this day. Equality of the sexes in public 
education is enjoined in some late constitutions. 
But various States, where the white and colored 
races are largely blended in a population now wholly 
free, forbid their instruction in the same public 
schools, and the policy is to educate the races 
separately. 2 

"No person," declares Pennsylvania in her consti- 
tution of 1790, " shall be disqualified from office on 
account of religious sentiments who acknowledges 
God and a future state of rewards and punishments;" 
dispensing for the future with belief in the inspira- 
tion of the Bible, the former limit of toleration. And 
with the dawn of the nineteenth century, the impulse 
became resistless to adopt Federal example, and get 
rid of religious tests for voter, office-hokler, or legis- 
lator. Maryland by 1810 abolished all taxation for 
the support of religion, remitting all Christian sects 
to the voluntary plan of sustenance. ^ Still earlier 
had Ohio's constitution, which ushered in the present 
century, proclaimed the right of conscience, the right 
of free worship to the individual, without religious 
preference or religious test; yet inculcating further 
in the same connection that religion and morality 
were essential to society, and hence that schools and 

1 See also Kansas, 1859. ^ 1 Bryce, 423. 

3 Much of the American written law by which this voluntary sys- 
tem became finally established in the different States depended upon 
simple legislation where the State constitution itself had fixed no defi- 
nite standard. Virginia's religious freedom act, for instance, antedated 
our Federal constitution, and was perhaps the earliest legislation of 
the kind. 



230 CONSTITUTIONAL STUDIES. 

common instruction, not inconsistent with rights of 
conscience, should forever be encouraged.^ Such 
precedents were not lost upon Congregational New 
England. Connecticut's bill of rights in 1818 
announced freedom henceforward for religious pro- 
fession and worship, and forbade preference to any- 
Christian sect or mode of worship. And, finally, 
Massachusetts, by constitutional amendment, abolished 
in 1833 her time-honored levy of parish taxes, and re- 
nouncing the former championship of " public Protes- 
tant teachers of piety," remitted all religious sects in 
the commonwealth to their own private devices for 
raising money. ^ "Free interchange of thought" (a 
right which should not be abused) is commended in 
some later American instruments.^ It was not, how- 
ever, until 1877 that New Hampshire, by modernizing 
amendment, struck out her ancient test of " Protes- 
tant religion," which discriminated against Roman 
Catholics for office. And atheists are still, or at 
least were recently, disqualified from holding office 
under the fundamental law of a few States.* Ver- 
mont's old constitution, moreover, still enjoins fun- 
damentally upon Christians the duty of regular public 
worship of some sort, and the observance of the 
Sabbath, or Lord's day.^ 

1 Ohio, 1802. 

2 See also Alabama's 1819 constitution forbidding religious tests for 
office. 

^ Indiana, 1851. 

* In four States (Arkansas, Maryland, North Carolina, and Texas) 
a man is ineligible to office who denies the existence of God ; in Penn- 
sylvania he is ineligible if he does not believe in God and the existence 
of future rewards and punishments. In Maryland and Arkansas such 
a person is also incompetent as a witness. See 1 Bryce, 424. 

5 Vermont, 1793. Cf. Delaware, 1831. 

Utah's singular experience as a Territory led to constitutional ex- 
pressions unusually strong upon her admission as a State (1895) ; there 
should be no union of church and State, nor domination of any church ; 
polygamous or plural marriages were forbidden, etc. 



IV. 

THE ELECTIVE FRANCHISE. 

That admirable forbearance which the fathers of 
our Federal instrument displayed in leaving the 
whole delicate regulation of popular suffrage to the 
several States deserves repeated mention. The new 
system of Union could hardly have been adopted 
otherwise. For the House of Representatives of a 
Federal Congress it was thought sufficient to require 
that the choice of a member from any particular State 
should be by the same suffrage standard which that 
State applied for election to its own most numerous 
branch of the Legislature. For membership in a 
Federal Senate, as well as in the supreme choice 
of electors of a Federal chief magistrate, deference 
was paid to the wisdom of each State legislature, — 
that safe embodiment of representative authority, as 
the earlier practice of modern republics regarded it, 
in an aggregation of public men, wiser and more 
trustworthy, it was thought, than the people whom 
they represented. All this suited well the temper of 
confederated States in the eighteenth century, and 
through the nineteenth results have continued on 
the whole satisfactory. All discussion, all experi- 
ment over the extension of the suffrage, then, has 
been conducted within separate State confines, except 
perhaps concerning negro suffrage, which civil war 
compelled the whole Union to consider as in some 
sense a national problem. Democracy and manhood 



232 CONSTITUTIONAL STUDIES. 

suffrage have gradually gained Federal ascendency, 
through ascendency in the several States where regu- 
lation is easier and more elastic. And in the mean- 
time the Federal example since 1787 of dispensing 
with all religious or property tests for participation 
in civil government stirred quickly the States to 
emulation. 

To repeat our former statement, this Union, so 
far as concerned the Federal form of government, 
might have developed into an aristocracy; but State 
direction and State institutions have compelled it to 
become a democracy. 

This Federal Union, as we have seen, began its 
operations in 1789 as a combination of States quite 
conservative and somewhat aristocratic for the most 
part, showing the force of English environment in 
the distrustful qualifications which hedged the indi- 
vidual right to vote.^ But under the sunbeams of 
enlightened self-government, those qualifications soon 
began dispersing like a morning mist. The Federal- 
ists, as the earliest national party intrenched in 
power, relied largely upon voters of property, upon 
the socially influential in established States. There 
were propert}'- tests and religious tests for electors and 
candidates already; yet, partly through the efforts of 
a political opposition, concessions soon appeared in 
one constitution or another. Penns3-lvania, with no 
religious test for the voter, dispensed in 1790 with 
her former religious qualification to hold office. 
South Carolina, the one State where caste and cavalier 
prepossessions stood the strain of democratic innova- 
tion down to the defiant strife of 1861, abolished 
religious tests both for voter and office-holder by 
organic change.^ Kentucky in 1799 pronounced in 
her constitution against religious tests, whether for 

1 Supra, page 50. ^ Supra, page 44. 



THE ELECTIVE FRANCHISE. 233 

voters or office-liolders, choosing the rule of the 
Federal Union. Delaware in 1792 enlarged the 
franchise so as to embrace every "viiite freeman" 
of full age and two years' residence who paid a State 
or county tax. Tax -paying was by the close of the 
eighteenth century the minimum standard which 
property qualification had reached under the old 
enlightened State example so far as constitutional 
expression was concerned ; yet among the earliest of 
new States, Kentucky dispensed wdth even this before 
the century ended, as did also Vermont. Maryland 
in 1810 abolished all former property qualifications, 
whether for office-holding or voting, even to the pay- 
ment of taxes. That the voter should be at least a 
tax-payer was, however, much longer insisted upon 
by most States. South Carolina's constitution of 
1790 adhered to the freehold qualification; "five 
hundred acres and ten negroes," or a real estate 
valued at £150 sterling clear of debt, was the stand- 
ard set in her organic lav/. 

Connecticut, in her constitution of 1818, favored 
qualifications of property, or of militia duty, or of a 
State-tax payment within a year. Massachusetts, 
abolishing all freehold or property qualifications for 
the voters soon after, clung still by the poll tax for a 
long period.^ Delaware in 1831 abolished religious 
and property qualifications, except as to paying taxes. 
Virginia in 1830 made a technical enumeration for 
propert}^ qualification, having earlier left the Legis- 
lature largely to itself. The democratic tendency 
in new States before 1830 was towards dispensing 
with even the tax-paying qualification, thus giving 
freely the franchise and popular control of govern- 
ment to numbers and not property. ^ New York in 

1 Abolished finally in 1891. 

2 Illinois, 1818; Alabama, 1819; Missouri, 1820. 



234 CONSTITUTIONAL STUDIES. 

1821 dispensed with its former freehold privileges in 
voting, at the same time specifying for the franchise 
various requisites of taxation, or of service in the 
State militia or among the firemen. During the 
years 1836-1860 the final abolition of tax-paying as 
well as of property-holding requirements became very 
marked in the changed constitutions of our States. 
Yet there are States which to this day require the 
payment of a slight tax in order to vote, while Rhode 
Island still imposes a property qualification. 

A buoyant and increasing confidence in the unregu- 
lated popular expression at the polls, for city and 
country alike, seems to have culminated in America 
about the middle of this nineteenth century. So 
far as white male inhabitants were concerned, all con- 
stitutional change in the States had hitherto tended 
to so extend the franchise that the poorest local 
resident not a criminal nor a dependent pauper 
might readily take part at the polls with those who 
paid taxes and had a pecuniary stake in the govern- 
ment; while as for bribery and the criminal disquali- 
fication not unfrequently denounced in organic law, 
convictions had been rare and individual disfranchise- 
ment by the Legislature still rarer. But now the 
native-born began to feel the evils of an unrestrained 
and incongruous migration from foreign lands, and 
of that organized machine in the largest cities which 
too often tampered with the ballot-box, and induced 
riot and corruption at the polling-booths. Greater 
purity of the ballot, the elimination of fraudulent 
opportunities, became henceforth a standing task for 
all good citizens. Hitherto no educational test had 
been applied to the common voter; but midway in 
this present century Native Americanism asserted 
itself. "No elector shall be qualified," declared 
Connecticut's amendment of 1855 in substance, "who 



THE ELECTIVE FRANCHISE. 235 

cannot read the constitution or any statute of the 
State; " and Massachusetts by 1857 confined the bal- 
lot to such as could read the constitution in the 
English language and write their names. To such 
constraints upon ignorant suffrage those two common- 
wealths have ever since adhered, claiming that prac- 
tical experience commends the rule, and a few States 
for special reasons have lately joined them. This 
reading and writing test is not the true one for all 
cases, since sturdy and honest manual labor makes 
better citizens than a mental training perverted. 
Foreigners may know their native language, if not 
ours, nor are the illiterate necessarily ignorant. 
Nevertheless, moral fitness, though a most desirable 
exaction, can only be tested by judicial conviction 
for crime, and an approximate organic satisfaction is 
better perhaps than none at all. 

Meanwhile various other constitutions of the decade 
1850-1860 are seen prescribing to one extent or 
another a registration system in. the growing centres 
of population, so as to reduce the danger of false 
and repeated personation at the polls ;^ and such 
safeguards will increase with time rather than 
diminish. 

The new State of Kentucky ordained that elections 
should last for three days at the request of any can- 
didate; and new Tennessee followed by prescribing 
two consecutive days.^ The eighteenth century was 
then near its close. Likely enough a similar usage 
had existed previously in Virginia or North Carolina. ' 
But the mischiefs of frequent and prolonged elections 
have since impressed our people; and by 1861 and 
the era of the Civil War, elections were almost uni- 

1 Virginia, 1850; Louisiana (as to New Orleans), 1852; Ehode 
Island, 1854. 

2 Kentucky, 1792, 1799; Tennessee, 1796. 



236 CONSTITUTIONAL STUDIES. 

versally confined by State organic law to a single 
day, each newly admitted member of the Union favor- 
ing that principle. To separate civic from State 
elections is held desirable in these later days; so, 
too, where possible, in alternate years, to separate 
the great State contests from the national. 

That controversy, as between the ballot and viva 
voce modes of voting, whose origin we have already 
remarked,^ continued far into the nineteenth century. 
Georgia in 1789, Pennsylvania and South Carolina 
in 1790, Kentucky in 1792, Vermont in 1793, Ten- 
nessee in 1796, each in turn gave fundamental prefer- 
ence to the modern ballot. But Kentucky, veering 
in her opinion, changed from the ballot in 1799 to 
viva voce, siding in practice apparently with the 
mother State, Virginia, whose course had been 
defined by statute discretion. Georgia's change of 
mind was somewhat similar. ^ And thus stood the 
issue at the close of the last century. 

Since then the use of the ballot under State funda- 
mental law has advanced steadily towards universal 
acceptance throughout the Union. ^ Original States, 
like New York and Maryland, which had once ex- 
perimented with the viva voce method, abandoned it 
forever.^ And the fair distinction drawn in 1790 by 

1 Supra, page 51. In Dr. Cortlandt F. Bishop's History of Elec- 
tions in the American Colonies (III. Columbia College Historical 
Studies, No. 1), it is shown that proxy voting prevailed very early in 
Massachusetts and adjacent colonies, and that traces of this practice 
remained in Connecticut's early election laws down to 1819, when her 
charter was superseded. This mode, as in private corporations, sug- 
gests a possible origin of the American ballot. See pages 50, 51. 

2 Georgia's constitutions of 1777 and 1789 had favored the ballot; 
but that of 1 798 required the electors to vote viva voce in all popular 
elections until the Legislature should direct otherwise. 

3 See Ohio, 1802; Louisiana, 1812; Connecticut, 1818. 

4 Maryland, 1810; New York, 1821. 



BALLOT AND ORAL VOTING. 237 

Pennsylvania's constitution is seen recognized in 
various other State instruments framed previous to 
1850, — that all elections shall be by ballot except 
those by legislators, who shall vote viva voce. For 
those in public station ought to be held by constit- 
uents to their public responsibilities and be judged 
by the record, while to the voter an honest indepen- 
dence, as among candidates, is the chief essential. 

But while the method of voting remained debat- 
able, we see in the various conventions of new States 
of the Mississippi valley a disposition either to com- 
promise or evade the present issue. Mississippi in 
1817, at her admission, ordained that the first State 
election should be by ballot, and all future elections 
"regulated by law;" Alabama in 1819 that all elec- 
tions should be by ballot until the Assembly directed 
otherwise; and Indiana in 1816, earlier than either, 
that all popular elections should be by ballot, pro- 
vided that the Legislature might, if thought expe- 
dient, change in 1821 to the viva voce plan, after 
which time the rule should remain unalterable. All 
such dexterous political expedients seem to have 
ended, as they ought, in establishing permanently for 
each State concerned the written or printed ballot. 
But Illinois, on the contrary, put the burden of proof 
upon advocates of the ballot, just as Georgia had 
done in 1798; her new constitution of 1818 or- 
daining that all votes should be given viva voce 
until the Legislature enacted otherwise. Even such 
subterfuges could not avoid destiny, for in 1848 
Illinois permanently established the ballot under a 
new State constitution. Georgia made apparently 
no change before 1861, whatever might have been 
the legislative action. Missouri's convention in 1820 
seems to have evaded the issue altogether; while 
Arkansas in 1836 gave clear preference to viva voce. 



238 



CONSTITUTIONAL STUDIES. 



just as Illinois had done when first entering upon 
statehood. The tendency of the century had now 
become unmistakable for taking each popular vote by 
ballot; and Michigan's concession to the contrary in 
1835, that township officers might be elected vivco 
voce, marks the extreme limit for suffrage by voice 
and a show of hands, so far as American practice 
permanently shaped out elections by the people. 

Down to the Civil War, however, while States 
such as we have mentioned might be thought doubt- 
ful in their dissent from the ballot, Virginia and 
Kentucky stood sturdily together to resist the gather- 
ing sentiment of sister States. And in the appeal to 
unflinching manliness at the polls these two States 
insisted that every voter should show at the hustings 
the courage of his personal conviction. Custom and 
statute law seem to have fixed early the viva voce 
standard for the Old Dominion, though her organic 
law down to 1830 was silent on the subject. But 
Virginia's new constitution of that year gave to the 
filial Kentucky a pronounced support, by the declara- 
tion that "in all elections" to any office or place of 
trust, honor, and profit, the votes "shall be given 
openly or viva voce, and not by ballot." And once 
again in 1850, the emphatic and somewhat humorous 
expression of Kentucky's constitution, a few months 
earlier, was duplicated in the new Virginia document 
of that year, that "in all elections," whether by the 
people or the Legislature, "the votes shall be per- 
sonally and publicly given viva voce, provided that 
dumb persons entitled to suffrage may vote by 
ballot." All this, however, won no more proselytes, 
for by this time all new States of the Union favored 
successively the ballot in their written constitutions ; 
and while the Civil War progressed, a decade or 




BALLOT AND ORAL VOTING. 239 

more later, Virginia recanted such views and con- 
formed to American practice.^ 

State reconstruction following the Civil War com- 
pleted the organic triumph of the ballot-box through- 
out the United States. But, free from all mihtary 
coercion in her organic institutions, Kentucky seems 
to have kept longest to the old method. In 1891, 
however, her constitution, too, was remodelled; and 
one clause of that instrument expressly declares that 
all elections by the people shall be by " secret official 
ballot." This full phrase sanctions the improved 
method of voting which our latest generation has 
adopted. Instead of the manifold private and partisan 
ballots once pressed upon each voter by rival canvas- 
sers at the polls, we now have in nearly every State, 
and as part of the organic law where new State con- 
stitutions or amendments dispose of the subject, an 
official ballot after what is known as the "Australian 
plan," publicly printed and prepared, on which appear 
the names of all party candidates for the voter's 
own secret mark of preference. A system, in short, 
which guards better than ever before the individual's 
choice and his personal freedom from corrupt and 
insidious temptation is the American suffrage reform 
which signalizes the last decade of the nineteenth 
century. 

Growing evils of machine politics and demagogism 
are met by numerous provisions in State constitutions 
of the past forty years, whose main object is to pre- 
serve at all hazards the purity of the ballot-box and 
the rights of each honest voter. Hence are found 
many details over ballot methods, registration, and 

1 Virginia and West Virginia, 1863-1864. Every voter shall be 
free to use an open, sealed, or secret baUot as he may elect. West 
Virginia, 1872. 



240 CONSTITUTIONAL STUDIES. 

the appointment of inspection officers to prepare and 
revise voting lists, especially in the large cities.^ 
Those kept at asylums or prisons at the public 
expense are forbidden to vote, while bribery or intimi- 
dation at the polling places, and all false personation, 
are crimes severely denounced for punishment, and 
fit reason, moreover, for depriving one of the rights 
of elector. 2 

A certain brief period of local residence is usually 
made indispensable to adult suffrage; such, for in- 
stance, as a residence within the State for tAVO years 
and within the town half that time. One must, at 
all events, according to our State constitutions, vote 
only at the place where he resides ; and within the 
first half of this century local residence for both voter 
and representative candidate became strongly insisted 
upon, as it has been ever since. ^ 

Various organic provisions of a miscellaneous char- 
acter qualify the right to vote. Thus South Carolina 
in 1810 expressly excluded non-commissioned officers 
of the United States from such exercise. Sailors 
and seminary students neither gain nor lose a voting 
residence by their casual presence.^ State suffrage 
has been usually confined to the native-born and to 
those naturalized under the laws of the United States, 
except for residents in the last century during the 
Revolution, or when the Federal constitution was 

1 See New York, 1894, providing for registration lists and a bipar- 
tisan election board. 

2 See for such details the constitutions of Maryland (1867), Mis- 
souri (1875), Colorado (1876), and New York (amendments of 1894). 
A few States have shown a fundamental dislike to registration provi- 
sions, as in the Texas, North Carolina, and West Virginia constitu- 
tions, 1870-1876. 

3 Semble, that under South Carolina's constitution of the last cen- 
tury a freeholder might vote where he held land, even though not a 
resident. The text appears obscure. 

* New York, 1894. 



% 



VOTING DISABILITIES. 241 

adopted ; ^ and supported paupers are quite generally 
excluded together with confined criminals. Each 
voter must have attained majority. During the 
Civil War and subsequently, gratitude to the citizen 
soldier induced in various loyal States some special 
extension of the franchise for the special benefit of 
that class of persons.^ Idiots and insane persons are 
always implied and often express exceptions to the 
exercise of local suffrage. While the Native Ameri- 
can party influenced our politics, an amendment in 
1858 to the ancient constitution of Massachusetts 
compelled an additional residence of two years within 
the jurisdiction of the United States subsequent to 
naturalization, before any person of foreign birth 
could be entitled to vote or eligible to office; but 
gratitude to the foreign-born who went forth to battle 
for the Union caused the repeal of that amendment 
in 1863. In various States at the northwest, on the 
contrary, the right to vote is extended to aliens 
who have declared their intention, even before reach- 
ing the full status of naturalized citizens of the 
United States. Latterly, however, some reaction 
from this policy has set in, Texas and Minnesota in 
1896 pronouncing overwhelmingly for amendments 
which made suffrage by foreign immigrants more 
difficult. 2 

1 Vermont by 1828 abolished a right which had been given in 1793 
to denizens who were not naturalized citizens. 

2 Thus Massachusetts in 1881 relieved from pauper disqualification 
every person who had served in the war and been honorably discharged. 
During the war, provision was made by some States for taking the 
votes of citizen soldiers in the field. And see New York, 1874. 

3 So large were the majorities for these respective changes that in 
Minnesota, with no issue of nationality raised, the constitutional amend- 
ment requiring an alien to become fully naturalized before he could 
vote, must have been supported by many foreign-born voters already 
secure in their rights. 

See also New York (1894) forbidding a naturalized foreigner to vote 
within ninety days after receiving his naturalization papers. 

16 



242 CONSTITUTIONAL STLfDIES. 

Negro suffrage in the United States remains a 
puzzling problem, and the revolution of sentiment 
favorable to its exercise is yet imperfect. State con- 
stitutions, those especially in the slaveholding area 
of the Union, made strong discriminations concern- 
ing race and color prior to 1861. This Federal 
Republic began its high career as the republic of 
European immigrants. Negroes, mulattoes, and 
Indians were specially excepted from the right to 
vote by the first of new slave States admitted into 
the Union. 1 Ohio, too, first-born of the Ordinance 
of 1787, began statehood by confining her elective 
franchise to " every white male inhabitant. " ^ Even 
Connecticut in 1818 conferred suffrage only upon 
"white male citizens." But Maine in 1820, like her 
parent State Massachusetts,^ conferred the right to 
vote upon "all male citizens," ignoring from the 
outset all distinctions of complexion. Massachusetts 
and New Hampshire had always been nominally 
liberal on this point, though the property test worked 
out sufficiently a practical difference. Vermont (fol- 
lowing Pennsylvania) and Rhode Island belong to 
the same category.* New England's homogeneous 
population favored all this generosity to races. Yet 
"free white men" or "white male" inhabitants or 
citizens grew to be the favorite organic expression 
during the first sixty years of this nineteenth cen- 
tury, as the nation expanded, whether in slavehold- 
ing or non-slaveholding States; and sometimes, by 
way of recompense for their exclusion, colored free- 

1 Kentucky, 1792, 1799, 

2 Ohio, 1802. 

3 See Massachusetts, Amendment III. (1821). Cf. Massachusetts 
constitution, as to "male inhabitants" having a property qualification. 

* Tt might have been a legal question how far free negroes in this 
period were to be deemed " citizens of the United States." The Dred 
Srfott decision (1857) is to be recalled in such a connection. 



NEGRO SUFFRAGE. 243 

men were exempted from militia duty and all pay- 
ment of the poll tax.i North Carolina's constitution 
of 1835 withheld the ballot from those descended 
from negro ancestors to the fourth generation. ^ New 
York in 1821 applied specially to all negro voters the 
requirement of three years' State residence and a 
freehold property.^ Even Pennsylvania, by 1838, 
changed from "all freemen" to "all white freemen" 
in defining the electoral franchise. At the date of 
our Civil War, unquestionably, the preponderance 
of State authority, north as well as south, justified 
the conclusion that America was in general effect a 
white man's government.^ 

Bloodshed and the long fraternal strife of arms 
put an end to such racial announcements. With 
the violent abolition of slavery throughout the land, 
and the reasserted supremacy of the Federal Union 
over all State opponents, came, as a secondary grand 
result, the mandatory extension of the elective fran- 
chise to manhood suffrage by Federal amendment, 
regardless of complexion, race, or the previous con- 
dition of bondage.^ The lately insurgent and slave- 
holding States embodied that declared extension in 
their new fundamental codes, as Congress compelled 
them to do ; and as for the loyal States northward, 
national duty and consistency demanded like organic 
changes. But even in States where no servile popu- 
lation was now set free, where slavery had never 
found strong foothold, and negroes still constituted 

1 Vermont, 1793; Pennsylvania, 1790; Ehocle Island, 1842. 

2 New York, 1821 ; Tennessee, 1834. 

* Californift in 1849 is liberal to all "white males," including those 
of Mexico who may elect to become citizens of the United States ; and 
even Indians and their descendants (but not negroes) are generously 
considered. 

* See Indiana, 1851 ; Oregon, 1857; Minnesota, 1857. 
5 Supra, page 197. 



2U COXSTITCTIOXAL STCBIHS. 

but a small fraction of the inhabitants, the people 
showed a decided repugnance to changing tlie old 
rule which had conthied the ballot to '* white male '' 
inhabitants. As late as 1S6J: the new free State of 
Nevada had been admitted into the Union while 
tlie Ci^"il War was in progress, with its organic law 
thus worded ; and only after a long poKtical sti'uggle 
would the Empire State of Xew York conform its 
OAvn organic expi'ession to the fifteenth Federal 
amendment.^ The reconstructed slave States, after 
suif erinof meanvrhile for a few vears from the domi- 
nation of a corrupt political faction which the new 
and misguided negro vote had helped into local 
power, threw off the disgraceful encimibrance ; and 
since 1S77 the white natural leaders have generally 
preserved in their own States a practical home rule, 
while the dej^fraded neo-ro vote has remained dormant 
or suppressed. A better and stronger participation 
of whites and negroes at the polls is hoped for here- 
after, as the race so long in bondage gains in educa- 
tion and industrial independence through the civilizing 
process of freedom. Meantime constitutional changes 
have b^een wrought in several of these States, which, 
without actually transgressing the Federal require- 
ments, bear chiefly against the large negro element 
in the population, bv advancino; the o^eneral tests of 
education and property for all electors/- and perhaps, 



1 Such a proposition liad b^en in 1S46 submirred separatelv to the 
TOters of that great State for adogriou, iivhen it was rejected by a vote 
of two to one. Again submitted bv way of amendment in 1S60, unre- 
strained negro suffrage was rejected by an immense majorirr. A new- 
constitution for New York was framed in 1S6S. which renewed the 
proposal of equal snffrage regardless of race or color : abd the people 
negatired that proposal by a closer vote. But by constitutional amend- 
ment in 1874 equal suffrage was proposed once more, and that amend- 
ment was finally carried at the poUs. 

- See Mississippi's constitution of 1890, and South Carolina's of 
1896. 



I 



^I^B 



PLURALITY ELECTIONS. 245 

too, by multiplying the enumerated convictions for 
crime upon which any individual offender may be 
wholly disfranchised.^ 

The gradual establishment of a plurality poll in 
place of the majority, as formerly, was in our older 
States the fruit of hard experience. For repeatedly, 
when leading parties were so divided that a third 
candidate held the balance of power, were the people 
baffled in their preference, so that a new trial at the 
polls became necessary, or else the Legislature, after 
a fundamental rule prevalent in the last century, 
became the umpire of candidates. Several of the 
leading historical States abandoned the majority for 
the plurality doctrine soon after the middle of this 
century, 2 conforming to a practice established much 
earlier in other parts of the Union. By that period, 
too, it became common in all newly admitted States 
to prefer the same electoral test, and thus decide the 
candidate chosen, once and for all, according to the 
obvious wishes of the greater number who had 
voted. ^ 

Minority representation is a new political idea 
recognized in some of the later constitutions, though 
scarcely favored, being confined naturally to local 
groups, such as aldermen, representing a single dis- 
trict or city.* Cumulative voting, which is much 
aided by the Australian official ballot, seeks such an 
end; and here among more nominations on a ticket 

1 " Petty larceny " is included among the offences thus punishable 
in Virginia's constitution of 1876. See also North Carolina, 1876. 

'^ Massachusetts, 1855; Maine, 1856; Virginia, 1880. Cf. Federal 
constitution, old-fashioned in this respect, page 162, 

3 Vermont, Rhode Island, and Connecticut are probably the only 
States in the Union which still require a majority to elect at the polls. 

* See Illinois constitution, 1870. West Virginia, 1872, permits a 
referendum on this issue. So in South Dakota ; but the vote proved 
adverse. 



246 CONSTITUTIONAL STUDIES. 

tKan there are persons to be voted for, voters can 
accumulate their strength in the selection. 

California in 1879 excluded all natives of China 
from the suffrage.^ Hitherto the American rule 
with trivial exceptions is seen to have been, under its 
most liberal conditions, that of manhood suffrage; 
and the admission of woman partially or fully to the 
same political privilege has now become an agitating 
issue, of whose final outcome in States long organized 
upon the historical basis of self-government it is yet 
too early to judge. ^ That the Legislature may dis- 
franchise those convicted of infamous crime is a con- 
stitutional permission, founded upon sound reason, 
which at this day is largely bestowed.^ 

Under some of the earliest constitutions of the 
new Federal epoch electors were specially privileged 
from arrest (except for specified heinous offences) 
during their attendance at the elections or while 
going and returning ; and this privilege from arrest 

1 Semble, in conflict with the 15th Federal Amendment, unless regu- 
lated by some such test as that of religion. 

2 See Minnesota's partial permit to the Legislature in 1875 ; Utah's 
constitution (1895) establishes it. See also permissive clauses, North 
and South Dakota. 

3 Kentucky in 1799 denounced penalties against those convicted of 
bribery, forgery, or' other high crimes and misdemeanors, one of which 
was exclusion from the suffrage. Special disqualification from voting, 
as a penalty for criminal conviction, became a just feature of many of 
our later constitutions ; and to the Legislature was given full power on 
the subject under one fundamental phrase or another. Ohio, 1802; 
Louisiana, 1812. Connecticut's organic law of 1818 (amended, 1875) 
required every elector to " sustain a good moral character," and de- 
prived one without reservation of his right to vote on conviction of 
bribery, forgery, perjury, duelling, fraudulent bankruptcy, " or other 
offence for which infamous punishment is inflicted." That the Legis- 
lature may disfranchise those convicted of infamous crime is the 
milder expression of many States. Indiana, 1816; New York, 1821; 
Delaware, 1831; Virginia, 1830; Tennessee, 1834. "Betting on elec- 
tions" is an offence. New York, 1846. Bribery, or the attempt to 
bribe, is a felony ; and one who offers a bribe may testify without 
being prosecuted for doing so. New York, 1894. 



VOTERS' INCREASED POWER. 247 

has become during the present century a feature of 
many State constitutions. ^ No elector shall be 
obliged to perform militia duty on election day 
except in time of war or public danger. 2 And dur- 
ing our latest era the American disposition has 
increased to combine elections so as to reduce their 
number and frequency, and give the local people of a 
State relief from political turmoil and excitement. 
State and national elections have in consequence 
been set for the same day, where formerly they were 
held in different months of the same year; and 
biennial State elections for both Legislature and the 
highest executive officers are now decidedly preferred 
to those annual pollings once deemed so essential to 
liberty,^ 

Not only in the extension of voting membership, 
but through increased opportunities for exercising 
the power to choose among candidates, has the elec- 
tive franchise made immense progress during the past 
century in these United States. The choice of local 
town and county officers at the polls has been con- 
sistently maintained from the colonial age, and more 
than ever do such incumbents derive authority from 
the people. Instead of choosing members of a single 
representative assembly, or of the most numerous 
branch only of the Legislature, as formerly, the mass 
of voters in each State have become, through the 
gradual assimilation in representative character of 
the two houses of a State legislature, electors on a 
uniform basis of qualification to both State Senate 

1 Pennsylvania, Delaware, Kentucky, and Tennessee, 1790-1799. 
The phrase is suggested by that clause of our Federal constitution 
which defines the privilege for members of Congress. 

2 Utah, 1895. And see supra, page 33, 
^ Supra, page 18. 



248 CONSTITUTIONAL STUDIES, 

and House. While for years after Araerican inde- 
pendence was declared, the chief magistrate of many 
States was chosen by the Legislature, that choice 
now devolves upon the general body of voters in- 
stead, as does also that of most other high executive 
officers, and, by as nearly a direct process as the 
Federal constitution will permit, of President and 
Vice-President of the United States besides. Finally, 
and as the full triumph of free suffrage longest 
opposed by conservative citizens, judges and the 
chief officials connected with the machinery of the 
courts are now chosen by the voters in nearly every 
State, — sometimes at large and sometimes by dis- 
tricts. The march of the American democracy to 
power has proved irresistible. 



V. 

THE LEGISLATURE. 

The general pattern of an American State legisla- 
ture, as shaped out by 1789, has served ever since 
without essential change. And the practical recon- 
struction of Congress by that important date gave to 
the more favored plan of a two-chambered body 
throughout the United States an immense propulsion. 
For under all republican governments experience 
teaches that the law-making power needs a constant 
check upon headlong activity, like that swift messen- 
ger of the fairy tale who had to put clogs upon his 
feet lest he should run too far. Scarcely had the 
Federal government started upon, its nobler career, 
when Georgia and Pennsylvania, the only States 
among the old. thirteen, that had hitherto since 1776 
experimented with the Legislature of a single house, 
gave up forever that tumultuous representative body, 
and conformed thenceforth to the bicameral rule.^ 
Vermont, however, whose young admiration of 
Pennsylvania's previous instrument of State govern- 
ment was unquenched, entered the Union in 1793 
with a single representative body by way of Legisla- 
ture. But in that bucolic State of small townships, 
coequal in comparison, under highly favorable con- 
ditions for further experiment, the plan did not work 
well, and by 1836 a legislature of two branches was 
substituted. These tests appear to have been conclu- 

1 1789-1790, under new State constitutions. 



250 CONSTITUTIONAL STUDIES. 

sive enough for American opinion; and the two- 
chambered Legislature has since remained the only 
kind set up in the United States. 

But a true basis of difference between the two 
representative branches of a State legislature has 
not been easy to formulate. That happy composite 
of the many and the one which supplies historical 
distinction between the Senate and House of Repre- 
sentatives of Congress finds no analogy in the popula- 
tion of an individual State. Some of our earlier 
local statesmen would have drawn out a basis of dis- 
tinction for the commonwealth by opposing property 
or social standing in the upper or smaller branch to 
numbers in the lower or larger; but the deep-set 
repugnance of the common voters to anything like 
organic recognition of privileged wealth or aristocracy 
sweeps us farther and farther from such political 
arrangements. Nothing has been left in the present 
era by way of a real difference of deputed authority 
in the tvt^o branches of a State legislature, but such 
as comes from representing geographical voting dis- 
tricts of larger area and population in the Senate, 
and of smaller area and population in the House, 
with perhaps a higher standard of age and a more 
stable tenure in the one branch than in the other. 
Nor are even such slight differences tolerated pa- 
tiently in a crisis of excitement by our jealous democ- 
racy, eager that its will shall be promptly and 
implicitly obeyed by the whole Legislature, and that 
each member shall bend to his constituency. The 
result of all this is naturally to invite into power 
flexible and time-serving legislators, seldom very 
wise, and frequently dishonest, to the exclusion of 
the free-spoken with minds of their own. In Massa- 
chusetts, as in most parts of New England, it was 
long the rule of representation to apportion the State 



THE LEGISLATURE. 251 

Senate by counties and the House by towns; and 
since candidates were arranged as much as possible 
by general tickets in the earlier days of the Union, 
leading citizens and their constituencies made of 
legislative service a matter for local pride and dis- 
tinction. The ablest and most popular in the town 
and county were re-chosen to the General Court year 
after year. But in course of time, as republicanism 
grew less compliant, the argument for separate and 
subdivided candidacies, for numerical representation 
by one periodical census or another, and for local 
rather than general tickets, carried such weight that 
the old system passed into discredit. Temporary 
geographical lines now made arbitrary groups by 
districts, combining towns and subdividing counties 
for one or another branch of the Legislature; and 
with little left to interest the foremost citizens in 
sacrificing personal time for the public, little chance 
for conspicuous service, representation now came 
much under the control of intriguers and petty 
seekers for place; instead of centurions in politics 
were the leaders of tens and twenties ; while towns, 
cherishing local pride no longer, had to be content 
with bargaining that the common deputy of the geo- 
metrically arranged district for the time being should 
be put up at one locality for one legislature, and at 
another for the next. Deterioration of ideals and of 
personal character comes as a necessary consequence 
of all this modern nicety in fractional representation, 
though other causes of political degeneracy may doubt- 
less be sought elsewhere; as, for instance, in the 
undiscriminating extension of the elective franchise 
among the shiftless and illiterate, and the growing 
wealth and complexity of society, affording opportu- 
nities and temptation for masters of political chicanery 
to use organization for base ends. Democracy itself, 



252 CONSTITUTIONAL STUDIES. 

so admirable in most other phases, yields too much 
to insidious flattery, and by its capricious and uncer- 
tain temper towards public servants and its mis- 
placed gratitude for public services, repels many 
who were best worth trusting above the common- 
place. 

Pennsylvania's constitution of 1790 apportioned 
senators of the State by districts. They were never 
to be less in number than one -fourth nor greater 
than one -third of the representatives. Both houses 
are in 1796 declared by the new State of Tennessee 
"dependent on the people." Following Federal 
example, the names " Senate " and " House of Repre- 
sentatives " henceforth became usually distinctive of 
the two branches.^ New York in 1801 increased her 
House and diminished her Senate, in order the better 
to make a fair contrast of size a prime element of 
distinction. The same period of service for both 
houses was selected in some new constitutions of the 
eighteenth century. But other States preferred some- 
thing more like the Federal arrangement; and so at 
least that senators should be chosen for a double, 
treble, or still longer term than members of the 
House, with perhaps a corresponding division of 
classes, for effecting a gradual change of member- 
ship, as in the United States Senate.^ While 
"annual elections " continued still into the nineteenth 
century the rule of the States for choosing to the 
popular branch, at least, ^ Tennessee, upon her admis- 

1 Delaware in 1792 substitutes this style for "Council " and "House 
of Assembly." 

2 Kentucky, 1799; South Carolina and Pennsylvania, 1790; Dela- 
ware, 1792. Kentucky, 1792, tried the Maryland plan of an electoral 
college for choosing senators, and by 1799 abandoned it. Supra, 
page 54. 

3 See Kentucky, Vermont, Pennsylvania, South Carolina, Georgia, 
New Hampshire, 1789-1800. 



THE LEGISLATURE. 253 

sion in 1796, ordained biennial elections for either 
branch. State elections, long held in the spring of 
the year, became by national influence transferred 
gradually to the fall, and then absorbed into the 
month and Tuesday of November designated for 
Federal elections. While New England favored 
towns as the early unit of representation in the 
House, southern States in the vicinity of Virginia 
chose rather the county for that purpose. And that 
census plan of periodical apportionment for represen- 
tatives, which the Federal constitution was not the 
earliest to offer, becomes rapidly a permanent feature 
in State systems.^ Both houses, says Ohio, as the 
nineteenth century began, are " to be chosen by the 
people ; " and her simple tax -paying qualification for 
membership in either branch betokened the dawn of 
a liberal dispensation of former property require- 
ments. ^ As in earlier State constitutions, eligibility 
to the Legislature was made incompatible with hold- 
ing other places of public trust; and priests and 
ministers of the gospel were in many States pro- 
nounced ineligible to the Legislature.^ Laws en- 
acted were to be published at the end of each session. 

Distrust of the Legislature appeared in funda- 
mental State provisions very soon after the new 
machinery of our Federal Union had been set in full 
motion. And most of the constraints now gradually 

1 See Pennsylvania, Tennessee, Georgia, during the eighteenth 
century. 

2 Ohio, 1802. But Louisiana, 1812, imposed a landed test, while 
some older States were abolishing such standards. New York long 
retained her freehold requisite for membership in the Senate. 

3 The Massachusetts constitution of 1780 placed no such disqualifi- 
cation upon the clergy ; but officers of instruction at Harvard College 
were made specially ineligible, — a rule which was not repealed until 
1877. 



254 CONSTITUTIONAL STUDIES, 

imposed by the people of the States were doubtless 
the offspring of public evils practically felt. Thus, 
New Hampshire ordained in 1792 that no member of 
the Legislature should take fees or serve as counsel 
or advocate in either branch.^ The appointment 
during one's legislative term to an office not elective, 
which had been newly created, or whose emoluments 
had been increased by the Legislature in which he 
served, was largely forbidden. ^ Secrecy of procedure, 
in State, as in the United States Senate, came under 
speedy condemnation. That the galleries of each 
House shall be open to all persons who behave 
decently we find proclaimed in various new constitu- 
tions before the close of the last century. ^ Ohio's 
constitution in 1802 set an example of parsimony in 
fixing the pay of legislators at a low rate, and there 
has been much regulation of the matter since, in the 
various States, with an ingenuity to discover some 
standard which might induce short sessions. That 
no increase of compensation to members shall go into 
effect for the same session in which the bill passes 
has long been the rule of many States.* And as the 
middle of this century approached, the popular pur- 
pose grew persistent to settle by basic and precise 
provisions the relative number of each branch, rules 
for apportionment and taking the census, and most 
other details of representative election, A classified 
Senate, like that of the United States, was now in 
the height of American favor ; while as to biennial 

1 Vermont in 1793 provided similarly. 

2 Pennsylvania, 1790; Delaware, 1792. Nor for one year after. 
Kentucky, 1799. The Federal constitution is imitated in such 
provisions. 

3 New Hampshire and Delaware, 1792; Vermont, 1793; Tennessee, 
1796. See also Pennsylvania, 1776 ; New York, 1777. Supra, page 56. 

4 See New York, Virginia, Tennessee, Alabama, and Mississippi 
about 1820. 



THE LEGISLATURE. 255 

legislatures, several States had advanced by 1850 to 
the next stage of making sessions biennial besides, as 
well as the Legislature itself.^ No session, prescribes 
Louisiana's organic law in 1845, shall last beyond 
sixty days. 2 And when in extraordinary session, 
says that of Illinois in 1848, those subjects only shall 
be considered for which the Legislature was convened. 
As in the elective franchise, we now see religious 
and property qualifications for the Legislature dis- 
pensed with, age and a local residence being the only 
enduring requisites for a seat in either branch. ^ In 
the latter respect State fundamental law has grown 
more insistent, if possible, as time goes on; and 
British observers of our institutions have not failed 
to comment upon the disadvantage of such a rule, in 
keeping the best talent of a whole State from com- 
peting for the public service, in order that local 
mediocrity may be exalted beyond its deserts. But 
whatever may be the force of this objection, the 
American people appear committed beyond recall to 
such requirement, since it gives mathematical force 
to each constituency. And in the more ambitious 
prize of representative to Congress, where State con- 
stituencies are still so much at liberty to go outside 
their own area for a candidate, it rarely happens that 
a non-resident district representative is sent to the 
Federal House at Washington by choice of the dis- 
trict voters. For a certain prepossession towards 
local objects, such as comes from common residence, 
is deemed needful for a representative ; so, too, local 
interests must be regarded, both in procuring the 

1 See Georgia, Texas, Alabama, Maryland, 1840-1846. This is an 
advance upon the Federal plan of a biennial Congress holding annual 
sessions. 

2 And all legislation beyond that date should be null and void. 

3 Delaware was the latest State which required a property qualifica- 
tion for the Senate. But see constitution (1897). 



256 CONSTITUTIONAL STUDIES. 

crumbs, however small, of public patronage, and in 
guarding and shaping special concerns in the vast 
miscellaneous business of a legislature. For all 
enactments of a legislature do not affect alike the 
welfare of the whole body politic, nor aim at general 
reforms ; nor is all public administration an adminis- 
tration for all. A few constitutions of the eigh- 
teenth century in its final decade insisted still upon 
freehold or property qualifications, especially in the 
State Senate ; ^ and the property test outlasted in the 
new era that of religion; yet Federal example and 
the genius of American democracy tended speedily 
to abolish all such distinctions. While the yeomen 
or property-holders sat together in a legislature, 
membership was of a higher grade, like that which 
we now see in a social club. 

Federal example set the fashion for various phrases 
of special description in a State constitution, relating 
to officers and methods of organization and due pro- 
cedure for either house in transacting the public 
business. And so, too, in the relative functions of 
the two houses, much the same sort of definition 
became applied. Thus, "bills for raising revenue" 
(a style henceforth preferable to the State "money 
bills," so called before 1787) were likewise to origi- 
nate in the House, or larger body; yet as this nine- 
teenth century developed, and two branches in most 
States were found in fact equally representative of 
the people, unlike the American Congress, the dis- 
position of State conventions increased to dispense 
with such old distinctions, so that all bills whatever 
might originate in either house.2 One idea embodied 

^ E. g., South Carolina, Tennessee, Delaware, New York. 
2 See Tennessee, 1796, setting an example in this respect, since 
widely followed. 



THE LEGISLATURE. 257 

in a State constitution or two of the eighteenth 
century, 1 has found much favor since: that every 
new bill must be read for three successive days, with 
free opportunity of discussion before it passes, unless 
in case of urgency a stated fraction of the whole mem- 
bership much greater than a majority dispenses with 
the rule in that branch where the bill is pending. 
More significant still is the spread of an early New 
Jersey fundamental, which substitutes for the major- 
ity of a quorum, in various instances, the majority of 
all elected to the body. Thus, while Federal prac- 
tice, and that perhaps of most States, still conforms 
to the old Parliamentary standard of a majority of 
the quorum for passing any bill, with a larger frac- 
tion, such as two-thirds, for overcoming vetoes and 
in other special cases, not less than nineteen of the 
United States could be counted in 1884 which made 
instead the majority of all elected the test of original 
passage in either branch, while some nine States 
applied that standard for passing bills over an 
executive veto.^ 

Old State precedent ^ has been much followed in 
permitting a legislature (where the Federal constitu- 
tion itself is silent) to punish by brief imprisonment 
persons not members who are guilty of contempt. 
By 1844 New Jersey put forth another idea for the 
first time apparently in our organic law, that each 
bill passed by the Legislature must have but one 
subject, the same to be expressed in its title; and 
New York in 1846 confining the idea rather to 
private and local bills, that rule more or less compre- 

1 Kentucky, 1799, and prior Virginia and North Carolina provi- 
sions; also Illinois and New York, 1816-1835. 

2 See New Jersey (1776); tables in Horace Davis's Constitutions, 
67, 68. Kentucky, 1799, first illustrates the latter instance of requir- 
ing a majority of all elected in either branch to overcome a veto. 

2 Supra, page 67. 

17 



258 CONSTITUTIONAL STUDIES. 

hensive has since found its way into many other State 
constitutions, often with the added proviso that no 
law shall be enacted at all except by a bill.^ That 
no public act shall be in force until a stated period 
after the end of the session corrects some mischiefs 
of the old common law, peculiarly distressing before 
steam locomotion and the telegraph were invented. 
Not even the public contracts of a legislature have 
escaped the vigilance of constitution framers in the 
newer States. Those for fuel or for stationery must 
be given to the lowest bidder ; extra compensation on 
public contracts must never be awarded ; nor may any 
member of the Legislature be lawfully interested in 
public contracts. 2 In New York State the stringent 
constitutional rule is now that all money bills and 
such as appropriate money or other property for local 
or private purposes shall require for their passage in 
each branch of the Legislature the two-thirds vote 
of all members elected. ^ 

The era of strong fundamental restraint upon 
legislative power in America opened with the second 
quarter of the nineteenth century. The patronage 
of electing the chief executive and all other high 
State officials became by this time quite generally 
taken from legislatures that had once enjoyed it, 
and vested by State constitution in the suffrage of 
the people. And, furthermore, the brief constitutional 
text applicable to legislative action in the earlier 
instruments, importing great confidence in the discre- 
tion of the people's representatives, ceases forever to 

1 California's constitution in 1849 well rounds off the expression, 
adding that no law shall he revised or amended hy reference to its title, 
but the section amended shall be published at length. Appropriation 
bills shall contain no other provisions. Illinois, 1848. 

2 Wisconsin and Illinois, 1848. 
8 New York, ] 894. 



THE LEGISLATURE. 259 

characterize these written fundamental ordinances. 
Nothing so convincingly manifests the progress of a 
popular self-confidence and strength among Ameri- 
cans, as contrasted with the old customary repose of 
constituents in the superior wisdom of the social 
superiors who represented them, as the nineteenth- 
century development in this special respect. Instead 
of leaving such public agents, as in Revolutionary 
times, to formulate and philosophize over the extent 
to which it might be safe to admit the commonalty 
to participate in government, we see communities as 
the efficient principals binding public agents by their 
own fundamental rules and cutting down credentials, 
as though deference to statesmanship were at an end. 
Instead of looking up to the Legislatuire as the arca- 
num of fundamental liberties, we see the people 
inclining rather to governors and the courts, as a 
needful corrective upon legislatures tempted to go 
astray. Instead of hailing each new session of the 
people's representatives as the advent of salutary 
reform, we see legislatures shortened and kept 
adjourned as much as possible, because of their 
sinister disturbing influence upon the sober pursuits 
of life; and beyond all delegation of authority is 
seen the popular determination to bend this and all 
other departments of government to public opinion, 
and render each public servant responsible for his 
stewardship. 

These restrictions upon legislative action have 
become so varied and numerous in our modern State 
constitutions, and so diffuse, moreover, as scarcely to 
admit of a clear classification. First and foremost, 
they show by 1835 a positive disrelish of special 
legislation, and especially of that for the benefit of 
business corporations. General laws become hence- 
forth insisted upon as much as possible by way of 



260 CONSTITUTIONAL STUDIES. 

substitute. Thus, the Legislature shall have no 
power to suspend a general law for individual benefit, 
nor to pass laws for individual benefit which are 
inconsistent with general laws, nor to grant special 
privileges, immunities, and exceptions.^ No private 
law shall be passed unless upon due notice of appli- 
cation. ^ Private and special privileges and appro- 
priations are seen checked in various ways. Some 
States shortly before the middle of the century tried 
to hamper the private creation of corporations ; others 
forbade that corporations, excepting municipal ones, 
should be specially created, but remitted their forma- 
tion altogether to general laws, with a general reser- 
vation that the Legislature might alter or repeal.^ 
Laws for loans or for pledging the State credit are 
expressly limited, both in the amount to be borrowed 
and the method of legislative enactment.* The 
particulars of taxation, too, under a just assessment, 
are defined; and those, too, of collection.^ Before 
the middle of the century, and following the disas- 
trous crisis of public State improvements about 1837, 
still more specific and stringent constraint was placed 
by organic law upon loans of State credit, and the 
authority to create State debts where no emergency 
of war or insurrection existed. Municipal borrow- 
ing, furthermore, was expressly limited, and muni- 
cipal authority in other respects; nor should the 
State, through legislation, aid private individuals or 
corporations.^ Banks were the first among chartered 

1 Tennessee, 1834. 2 North Carolina, 1835. 

3 See California, 1849; also various States (183.5-1849), such as 
Rhode Island, New York,' Pennsylvania, Michigan, Florida, Texas, 
Wisconsin. 

4 Mississippi, 1832. 

5 Maine, 1820. 

6 See 1842-1849, Rhode Island, Maine, New York, New Jersey, 
niiuois, Florida, Wisconsin, Texas, California. 



THE LEGISLATURE. 261 

private corporations to encounter such popular dis- 
like ;i but after the Civil War it was chiefly the 
railway-carrier. 

There shall be no act of incorporation hereafter, 
says Delaware in 1831, unless two-thirds of each 
branch concur; a power of revocation shall be 
reserved, and the term (unless for public improve- 
ment) shall not extend beyond twenty years. In 
divorce and alimony matters, the alteration of names, 
adoption, and the restoration of voting rights to those 
convicted of crime. States authorized general legisla- 
tion, but forbade special enactments on the subject. ^ 
And so, too, in organizing churches and private 
societies, and in authorizing the sale of lands, general 
laws, with a special procedure in the courts, now 
found fundamental favor. 

The impulse thus given by 1850 to legislative 
regulation and constraint by State fundamental law 
has since been steadily felt, and extended to every 
quarter of the Union. Every later reform has been 
in the same direction of fundamental constraint by 
the people, so that public servants may not feel 
above their masters. As for the structure of our 
American Legislature of two houses. New England 
States still prefer that each branch shall come wholly 
fresh from the people at each election ; which election 
in Massachusetts and Rhode Island alone is still 
annual, after the eighteenth-century fashion. ^ But 

1 See Indiana, Illinois, Missouri, Mississippi, 1816-1820. No more 
than one bank shall ever be chartered by the same act. Pennsylvania, 
1838, recalling Governor Snyder and the "litter of banks" which he 
killed by a veto. 

2 North Carolina, 1835. 

^ An amendment proposing the change from annual to biennial 
legislatures was submitted to the people of Massachusetts in 1896 and 
voted down at the polls. 



262 CONSTITUTIONAL STUDIES, 

all other States of the Union, old or new, have 
adopted biennial terms, — a system which has given 
satisfaction wherever tried. And in choosing bien- 
nial legislatures the State preference by two to one 
is, furthermore, in favor of biennial sessions, unlike 
the rule of Congress.^ Senators hold usually in our 
States by the classified plan and with longer tenure 
than the House ; but a half rotation at each election, 
so as to bring the Senate in closer touch with public 
sentiment, modifies the Federal example.^ For either 
branch of the Legislature the candidate, local by 
district and local in residence, is chosen at the polls. 
About half the United States limit the general ses- 
sion of a legislature, even though it be only a biennial 
one, to a fixed number of days, averaging less than 
ninety. 2 Nor has it been thought ignoble to so regu- 
late the pay of legislators as to spur them up to 
organize promptly and push their work to its conclu- 
sion; for we find a gross salary fixed for the whole 
session,* or a per diem for so many days, and no 
longer;^ while Indiana's constitution of 1851 made 
the humiliating rule that each legislature must organ- 
ize within five days from assembling a quorum, or 
else have all the pay stopped until the organization 
is complete. 

Other stringent provisions are found. No new 
bill shall be introduced after so many days ^ of the 

1 New York, New Jersey, Kansas, and "Wisconsin, besides some New 
England and various scattered Southern States, prefer annual sessions 
for a biennial legislature. 

2 New York, in 1 846, took this new departure as the result of long 
experience, and Michigan, Ohio, and other States presently joined her. 
See Table (1884) Davis's Constitutions, 68. 

^ Davis, ih. No session to last longer than the length prescribed by 
organic law, unless two-tliirds of all elected vote to extend it. Ken- 
tucky, 1850; and see Virginia, 1850. 

* Oregon, 1857. 

6 Michigan, 1850. « Fifty. Michigan, 1860. 



THE LEGISLATURE, 263 

session have expired. No law shall pass by either 
house on the day prescribed for adjournment, but 
bills may then be enrolled. ^ Acts shall not pass to 
cure former omissions, but by general statutes the 
courts may be authorized to apply such remedy. The 
people shall choose a State printer; stationery con- 
tracts shall be awarded by a legislature to the lowest 
bidder; perquisites of members in public documents, 
books, newspapers, and postage are cut down or for- 
bidden. No State paper shall be selected or estab- 
lished for publishing the laws.^ A date is designated 
when all acts of a session with fixed exceptions shall 
take effect, having by that time been duly published 
and circulated. Technical terms must be avoided in 
legislation; every act shall have its title, and only 
one subject; all acts are to be presumed public acts, 
nor shall revision be made by mere reference. Riders 
shall not be placed upon appropriation acts, but every 
such act shall appropriate only.^ Many compulsory 
provisions of this character originated in States of 
the Mississippi valley, or west of the Rocky range ; 
but some, the oldest and wealthiest of Atlantic com- 
monwealths, like Nev/ York, have since made similar 
regulation, tired of the long usage in bodies unre- 
strained like Congress, of deferring enactments both 
trivial and momentous to the closing days of a ses- 
sion, and then, with shameful haste, much scandal 
and little scrutiny, pushing the whole mass through 
together.* 

Massachusetts, proud of traditions and her old 
framework of government, not only resists to the last 

1 Minnesota, 1857. 2 gee Michigan, 1850; Ohio, 1851. 

3 Virginia, Ohio, Indiana, Oregon, 1851-1857. 

* By New York's amendments of 1894, all bills must have been 
printed and distributed to the legislators at least three days before 
their passage. 



264 CONSTITUTIONAL STUDIES. 

such modern organic changes, but stands for the 
broadest discretion still possible in legislative pro- 
cedure and policy. After temporizing for a while 
in her basis of membership with the modern embar- 
rassment of growing cities and depleted towns, that 
State conformed before the Civil War to the new 
necessity of district numerical representation. Vir- 
ginia, after a somewhat similar effort to temporize, 
found herself overwhelmed with a solution of the 
representative problem which in the Civil War cost 
the State her whole western population. A strict 
apportionment rule for the two legislative branches 
under a periodical census became the almost invari- 
able practice of American States before 1861. Limi- 
tations were by that time usually fixed or clearly 
designated in new constitutions concerning the size 
of each house. Many, however, of the changes 
which in more modern constitutions of our States 
have been seen fundamental ^ are by force of mere 
statute wrought out in Massachusetts and the few 
other States which still confide in the discretion of 
representatives, and hug the old theory that legisla- 
tures, freely chosen and frequently convening, are 
the palladium of republican liberty. Biennial legis- 
latures, with biennial sessions, would hardly suit a 
commonwealth until fundamental checks had been 
put upon legislation itself. 

Scarcely a State in the Union, except Delaware, ^ 
exists at the present day, outside of New England, 
whose constitution does not enter into details which 
prohibit special legislation. During the decade pre- 
ceding our Civil War the constitutions of Indiana 
and Oregon enumerated the instances at length where 

1 E. g., the preference of systematic organization and procedure 
under general laws to special enactment. 

2 A new Delaware constitution (1897) is just ordained. 



THE LEGISLATURE. 265 

general legislation should be rather applied; for 
instance, in duties of justices of the peace and con- 
stables; in regulating court practice and the venue 
of actions; in divorce, the change of names, and 
inheritances ; in sales of the real estate of minors and 
insane persons; in laying out highways and town 
plats; in regulating county and township business; 
in taxation, the support of schools, official fees and 
salaries; as to interest and usury and the conduct of 
elections. Minnesota just before 1860 set an organic 
rule relative to lending the credit of the State to 
certain railroads; and wearied of recent experience 
in mingling State liability with private enterprises, 
we see various States prohibiting thenceforward all 
debts of that character, while arranging to sell out 
the State stock held in existing schemes of im- 
provement. Constraints already prevalent upon 
private incorporation, and the incurring of debt, 
State or municipal, increase rather than diminish as 
the new era progresses.^ In short, American State 
constitutions at the present day strongly favor the 
idea of impartiality towards all inhabitants, and the 
uniform operation of all laws throughout the com- 
monwealth to its remotest borders without preference 
or privilege to any men or set of men. 

If it be objected that all such hampering provisions 
show distrust of the people's representatives, that 
distrust is generated by a superior constituency, con- 
fident of its capacity to give instructions. A lapse 

1 See Wisconsin, 1871, which, among other express prohibitions 
upon special legislation, names the location or change of county seats, 
the apportionment of the school fund, the incorporation or charter 
amendment of any town or village. The Legislature shall audit no 
claim, hut shall only appropriate after the claim has been audited. 
New York, 1872. No extra compensation shall be voted to any public 
officer or contractor. lb. 



266 CONSTITUTIONAL STUDIES. 

in character and ability may be predicated usually of 
our public agents in times of peaceful routine; but 
all the while good citizens are vigilant and patriotic, 
and in great emergencies they come to the front. 
Public life has no great charm here with its tidal 
changes, and men prefer the more permanent dignity 
and emolument of private station. But public 
opinion still watches and influences ; and the average 
community of worth and intelligence, with skilful 
merchants and corporate organizers, university in- 
structors and professional men, journalists, whose 
power for good or evil is immense, and farmers and 
mechanics, trained to intelligence and self-reliance, 
form opinions on all public questions as they arise 
and determine for themselves what should be done, 
where once they left that determination to leaders. 
The morning paper keeps each in touch with affairs, 
and comment invites conclusion. Hence is it that 
the circle which legislates is itself encircled by a 
vaster deliberating audience, which is quick to note 
vicious tendencies, and brings practical ingenuity to 
bear upon their correction. "The longer a consti- 
tution," it is sometimes argued, "the weaker the 
people, and the more corrupt a community." Rather 
should we say that, the longer a constitution, the 
more complex the public interests which have to 
be considered, and the sounder and more confident 
the people that thus manifest a determination to 
head off corruption and to bind all lesser agencies 
by overmastering rules. Scarcely a change has been 
here recited in legislative power and procedure which 
is not, upon the whole, a change for the better. 



VI. 

THE EXECUTIVE. 

The trend of experience in American States has 
been since 1789 to free the Executive of the people 
from the trammels of subordination which the Legis- 
lature once applied. Two results have thus gradually 
come about : (1) that the State chief magistrate, 
somewhat after the example of a Federal president, 
brings a certain dignity and independence of his 
own to bear upon legislative action; (2) that the 
Executive, as v/ell as the legislator, feels an imme- 
diate dependence upon public opinion, and is equally 
representative of the voters, though representing 
officially the whole State, and not a fraction or geo- 
graphical portion thereof. And thus does immediate 
and practical representation of the people broaden 
greatly its original base. All this is very different 
from our American disposition in the Revolutionary 
age, for then no bulwark seemed too strong against 
executive tyranny, as personified in the late monarch 
or royal governors of Great Britain, and a legislature 
seemed the sole refuge of public liberty. 

Now that "President" had become the style of 
the Federal Executive, States formerly employing 
that designation dropped it for "Governor" on the 
earliest opportunity following 1789.^ 

The first organic change noticeable in these com- 
ponent States after the new Union went into opera- 

1 E. g., Pennsylvania and Delaware before 1800. 



268 CONSTITUTIONAL STUDIES. 

tion was inevitably to deprive the legislature of its 
primary choice of a chief magistrate where such a 
choice had formerly prevailed. Massachusetts had 
since 1783 furnished notably the admirable example 
of a State executive directly chosen by the people. 
The Federal mechanism, too, for selecting a presi- 
dent, though cumbrous and defective enough, meant 
at all events an escape for Federal government from 
the incubus of primary selection by Congress. In 
the new State of Kentucky, therefore, public opinion 
worked rapidly in the new direction. At once dis- 
carding the mother-State practice of choosing a gov- 
ernor by the Legislature, that State tried in 1792 
the q^uasi Federal expedient of a choice by special 
(senatorial) electors; but by 1799 this choice was 
transferred to the people. Pennsylvania, Vermont, 
Delaware, and Tennessee, during the last ten years 
of the eighteenth century, concurred in the test of 
election by popular suffrage under their new organic 
law.^ Ohio again in 1802 gave the choice of State 
Governor to the people; Louisiana, the next new 
State, making a strange compromise instead, ^ which, 
by 1845, gave way to popular elections conformable 
to American State practice elsewhere. As the nine- 
teenth century passed its first quarter, old States, 
such as Georgia, North Carolina, and Connecticut, ^ 
in framing new constitutions, were seen conforming 
to this principle; Virginia, however, in 1830 still 
keeping to its Revolutionary mode of legislative 
choice of a governor. New States meanwhile were 

1 But Georgia, in 1798, adhered to choice by the Legislature; and 
so did South Carolina, 1790. 

2 A legislature fresk from the people was to ballot from the two 
highest candidates voted for at the polls, Louisiana, 1812. 

^ Connecticut had long pursued this popular plan under her charter 
government, prior to the constitution of 1818, which emanated from 
the people. 



THE EXECUTIVE. 269 

invariably conferring the choice of chief magistrate 
upon the people, under their successive instruments. 
A plurality choice, moreover, by the people (which 
must almost invariably result in a positive selection 
between candidates on a single trial at the polls) 
found strong proselytes before the last century ended, 
since evidently the larger fraction of public support 
is the safest. Of States so committed before 1800 
were Pennsylvania, Delaware, and Tennessee. Ohio 
opened the new century with a State constitution of 
1802, which announced the same rule, since almost 
universal. American practice had formerly favored 
the idea that wherever a majority of voters was 
requisite, the eventual choice from among the highest 
candidates should revert to the State Legislature, if 
the people elected no one, since, in so essential a 
department of government, time ought not to be 
wasted over further trials at the polls. ^ And to this 
older rule some of our original States adhered during 
the first half of the nineteenth century, — Maine, 
on her separation from Massachusetts in 1820, still 
retaining it. 

Federal example now favored an increase in length 
of the executive term, so as better to promote inde- 
pendence, experience, and stability in each incumbent 
of the office, formerly chosen annually. Four years 
was the term fixed upon by Kentucky in 1799, and 
in 1812 by Louisiana. Three years, somewhat earlier, 
had Pennsylvania and Delaware established it by 
way of change, while South Carolina, Georgia, and 
Tennessee, between 1790 and 1800, made two years 
their preference. Ohio, in 1802, fixed the tenure at 

^ See Vermont, 1793; supra, page 60. The constitution of the 
United States still retains this antiqnatecl feature of eighteenth-centurj 
instruments. 



270 CONSTITUTIONAL STUDIES. 

two years, and various other States followed with the 
same limit. But Vermont, faithful to New England 
tradition in this respect, pronounced upon her ad- 
mission^ for annual elections; nor did Connecticut 
vary her ancient rule in that respect when supersed- 
ing, after the War of 1812, her colonial charter. 
Outside New England, however, the tendency for 
longer terms of office and less frequent elections was 
soon unmistakable. New York, Virginia, and North 
Carolina all speeding before 1835 in that direction, 
and new States taking the same current almost in- 
stinctively. In short, by the present day, not a State 
governor can be found outside of New England 
whose term of office is not at least two years ; while 
about half of our State executives are chosen rather 
for three or four years. ^ 

Re-eligibility to supreme office was restrained by 
various jealous instruments of the earlier epoch; yet 
that restraint appears almost invariably to have been 
partial only, and so as to permit of one's re-election 
for a specified number of years out of some longer 
stated period, or after the expiration of so many 
years in retirement. Delaware in 1831, while raising 
the executive term from three to four years, declared 
the Governor re-ineligible altogether, — a constraint 
which appears at this day quite abnormal in the 
American system.^ 

Organic tests for such station were not long kept 
up after 1789. Pennsylvania, Delaware, Vermont, 
and Kentucky, among States framing new or original 
constitutions towards the close of the last century, 
dispensed liberally with both religious and property 
qualifications. Maryland in 1810 abolished all prop- 
erty qualifications, whether for executive office or 
the Legislature; and Ohio in 1802 entered the Union 

1 1793. 2 Davis, Tables, page 67. ^ lb. 



THE EXECUTIVE. 271 

free of all such impositions. Tennessee in 1834 
abolished the freehold qualification for Governor. 
Towards the middle of the present century new con- 
stitutions and new States usually ignored both prop- 
erty and religious tests. On the other hand, the 
constitution of South Carolina had exacted property 
of the value of £1500; that of Tennessee a freehold 
of five hundred acres; that of New Hampshire, 
besides property, that the Governor should be of the 
Protestant religion ; ^ while Louisiana in 1812 required 
landed property worth five thousand dollars. New 
York's constitution of 1821, with all its popular 
innovations in other respects, maintained for Gov- 
ernor the former freehold requirement. North 
Carolina, when revising her instrument in 1835, still 
disqualified atheists from the office, and required 
property to a moderate limit. But now in 1846 New 
York abolished her freehold qualification for Gov- 
ernor once and forever. Other old States instituted 
similar changes, while States newly organized one 
and all disregarded tests of property peculiarly un- 
suitable to their simple condition. New Hampshire 
abolished all freehold and property qualifications in 
1852, and so had Massachusetts done for members of 
the Legislature, though for many years longer this 
latter commonwealth exacted of its Governor a free- 
hold in his own right worth XI, 000, and only in 
1892 was this old test stricken out by vote of the 
people.^ But residence remains an essential quali- 
fication in the States. The resident qualification 
was somewhat stringent in constitutions of the eigh- 
teenth century, aside from that of United States 

^ See State constitutions, 1790-1800. 

2 This text requirement of 1780 had probably escaped notice for 
many years. Governor W. E. Kussell at length called attention to 
the anomaly, and an amendment was readily carried. 



272 CONSTITUTIONAL STUDIES. 

citizenship. Thus seven years' residence in the 
State was the test in Pennsylvania, and ten in South 
Carolina. A lesser term of State residence, such 
as six or four years, gained preference in the first 
quarter of this nineteenth century,^ and the tendency 
has since been more liberal still. "A native citizen 
of the United States," following Federal precedent, 
several important States insisted upon early in this 
century, and various others embody now the same 
idea.^ Disqualified classes have been announced from 
time to time in certain constitutions; members of 
Congress, for instance, State or United States officials, 
or ministers of religion. The Governor must not 
hold during his term any other office of profit.^ 

The colonial appendage of an executive privy 
council or directory began by 1789 to fade out in the 
old thirteen States ; while States newly admitted and 
having no early custom in this respect chose to 
dispense quite generally with the encumbrance.* 
Special functions of the old executive sort were for 
the future left rather to a specific Senate, as under 
the Federal system. Even in New England States 
which retained expressly that " council " feature of 
the executive branch, the choice of councillors became 
transferred to the people by districts, in place of the 
early legislative selection.^ Virginia in 1830 reduced 
her Revolutionary "council of State," and applied to 
that body a plan of rotation, but abolished the whole 
council finally in 1850 as Maryland had done in 1837. 
Maine in 1820 followed the parental example of 
Massachusetts in establishing a permanent executive 
council. Connecticut, on the other hand, merged 

1 Louisiana, 1812; Ohio, 1802. 

2 New York, Virginia, Alabama, Missouri (1821~]835). 

3 Maryland, 1809. 
* Supra, page 61. 

s See Massachusetts, amendment, 1840. 



THE EXECUTIVE, 273 

her council fully in the Legislature as an upper 
branch in 1818 ; while Vermont, beginning statehood 
with such a body, abolished it in 1836. Rhode 
Island's constitution of 1842 dispenses with an 
executive council. After 1850, therefore, Maine, 
New Hampshire, and Massachusetts became and 
since remain the only States of the Union which still 
maintain that old excrescence of colonial rule by 
Great Britain.^ 

Lieutenant-Governor was recognized in the new 
constitutions of Kentucky, Vermont, and South 
Carolina at the close of the eighteenth century; while 
Pennsylvania, Delaware, and Tennessee left that 
official out of their new or remodelled instruments 
during the same period, as also did Ohio and Louisiana 
early in the nineteenth century. During the first 
half of the present century new States, without sec- 
tional distinction, seem to have divided their prefer- 
ences nearly evenly in respect of setting up such an 
office; but towards 1850 the drift set strongly in 
favor of lieutenant-governors, several old States 
changing their former constitutions to that intent. 
Ohio in 1851 established that office after half a cen- 
tury's experience without it. A lieutenant-governor, 
wherever recognized in State instruments, was now 
to be chosen by the people like the Governor; and 
so long as no vacancy in the chief office occurred for 
his advancement, his chief duty was to preside over 
the State Senate. Wherever, indeed, such executive 
functionary was dispensed with, under a State con- 
stitution, the President of the Senate supplied his 
place. 2 Perhaps the political convenience of a double- 

1 North Carolina, however, recognizes a peculiar " council," much 
like a Federal cabinet, and consisting of the heads of the chief depart- 
ments, 1876. 

2 Delaware (1897) has just changed. Utah's constitution (1895J 
designates a governor, but no lieutenant-governor. 

18 



274 CONSTITUTIONAL STUDIES. 

headed ticket at the polls, to attract voters and invite 
combinations for party support, has more to do with 
the popularity of this vice-executive than any solici- 
tude over the possible vacancy that may promote him 
to full power. Concentration of the voting interest 
on an individual candidacy had, on the other hand, 
been thought in earlier times the surest pledge for 
bringing the best man into supreme office. 

It became common after 1789 to adapt for new or 
reorganized State governments various provisions 
relative to the executive department which our 
Federal constitution had set forth in a corresponding 
connection. Thus the Governor's salary was not to 
be increased during his existing term of office. He 
was to take heed that the laws were properly executed. 
He was empowered to convene the Legislature on 
extraordinary occasions, and at every session of that 
body was to communicate public information and 
recommend public measures by message. He might 
adjourn the Legislature where the two houses could 
not agree. He was of coarse commander-in-chief of 
the State militia, though, as some States provided 
further, he should not command in the field person- 
ally save upon request of the Legislature. He 
might require information or advice in writing from 
his chief subordinates. 

The pardoning power, either absolute or limited, is 
conferred upon the Governor by the constitutions of 
almost every State in the Union ; ^ and the phrase of 
the Federal constitution (which includes reprieves) 
supplies the usual text in this respect.^ But some 

1 Connecticut appears to furnish the only real exception at the 
present day, agreeably to local tradition. 

2 Delaware, in 1831, required tlie Governor to lay his reasons for 
each pardon before the Senate. Various States have since adopted a 
similar rule. He must send in to the Legislature a specific list of the 



THE EXECUTIVE. 275 

States require the advice of the Senate to such an 
exercise;^ and occasional reservations are made 
besides the Federal exception of impeachment, par- 
ticularly in the offence of State treason. In Con- 
necticut the Governor can merely reprieve until the 
end of an ensuing session of the Legislature, while 
the Legislature alone can pardon. ^ New Jersey in 
1844 set up a judicial committee on pardons to re- 
strain the Governor's free exercise of the power; and 
in Massachusetts the Governor's Council takes like 
cognizance of his action.^ But no remission of court 
fees or of a debt due the State shall be made in par- 
doning ; * public notice of application shall be given 
before a pardon is granted,^ and the Legislature may 
regulate as to the manner of applying.^ 

Among other provisions are these. The Governor 
shall send a message to the Legislature with recom- 
mendations at the close of his official term.'^ And 
having a considerable power usually to appoint, he 
must nominate to the Senate within fifty days after 
the Legislature assembles in session.^ No person 
once rejected by the Senate shall be nominated again 
unless at the Senate's request, nor appointed to the 
same office during a recess.^ Maryland in 1851 
authorized the Governor to remove minor officers 
summarily for incompetency or misconduct. And 
so favorably has such provision been since regarded 

pardons granted, together with his reasons in each case. Wisconsin, 
1848, modifying New York, 1846. 

1 Louisiana, 1812; Rhode Island, 1854. 

2 Connecticut, 1818. 

^ See also Indiana, 18.51. 

4 Kentucky, 1850; Maryland, 1851. 

5 Maryland, 1851. 

6 New York, 1846. 

7 Michigan, 1851. 

8 Maryland, 1851. 

9 Ih. 



276 CONSTITUTIONAL STUDIES. 

elsewhere that at this day the Governor in New York 
and various other States has enlarged power over the 
high officials under him, even such as the Secretary 
of State and Treasurer, especially where corruption or 
gross neglect of duty is alleged, and may examine 
and report to the Legislature concerning the facts, 
and meanwhile suspend temporarily the accused 
person from office.^ 

As for the veto power, this, too, is generally 
bestowed in the several States upon the chief mag- 
istrate, according to the Federal principle which 
originated in Massachusetts.^ An absolute executive 
veto, to be sure, has been unrecognized in America 
since the days of royalty; but a qualified veto by the 
Governor appeals to the second thought of the Legis- 
lature, whose two houses may by a sufficiently large 
vote on reconsideration pass the measure in question 
to take effect, notwithstanding the official objections. 
Two-thirds of a quorum constitutes usually that suffi- 
cient vote agreeably to Federal and Massachusetts 
precedent;^ but a few States set this requirement at 
three-fifths;* while a rule which has gained much 
favor in the Union during the present century pre- 
scribes for each house a proportion of all the members 
elected, in order to override a veto.^ In four of the 
United States at least the Governor has no real veto 
power at all, but at most can only require the Legis- 
lature to reconsider its action. ^ Vermont in the last 

1 See Michigan, 1862; New York, 1846, and amendments. 

2 Supra, page 62. 

3 Georgia and New Hampshire (1790-1800). 

4 See Nebraska, Maryland. 

5 See st(j9ra, page 257 ; Kentucky, 1799, and many new States (1820- 
1835). 

6 Davis, Constitutions, Table, page 67. Rhode Island, Delaware, 
North Carolina, and Ohio. South Carolina's former constitution (1 790), 
was to the same effect. Ohio never granted a veto power to the 
Governor. 



THE EXECUTIVE. 277 

century constituted the Governor and Council a board 
of concurrence in legislation with power to return a 
bill or propose amendments, which, if not agreed to 
by the Assembly, effected a suspension of the bill 
until the next legislature. The Vermont Legisla- 
ture was then a single-chambered body; and after 
the radical reforms of 1836 in that State, when the 
council wholly disappeared, the Governor, no longer 
thus encumbered, assumed normal relations with a 
legislature which consisted of two houses from that 
time forward. A mere reconsideration and passage 
at discretion is the practical effect of an executive 
veto, under a few constitutions of this century; 
that of Connecticut in 1818, for instance, which 
permits the majority of a quorum to finally pass a 
bill, whether before or after an executive veto; and 
New Jersey in 1844 requiring a majority of all elected 
in either branch to pass a bill, whether first or finally. 
"Two-thirds of all elected" is the rule prescribed in 
some other States for overriding a veto, though not 
for original passage of a bill. ^ The "pocket veto," 
where a legislature adjourns before giving the chief 
magistrate his full time to consider, is further allowed 
in most States, after the Federal example; and 
Massachusetts in 1822 added that feature expressly 
to her organic provision of 1780, to make the veto 
power complete. At the present day, under State 
constitutional provisions dating for the most part 
later than the Civil War, a governor may consider 
and decide whether or not to veto any act of the 
Legislature for a prescribed period after the session 
adjourns. And in not less than thirteen States he 
may also veto particular items in appropriation acts, 
leaving the residue to stand unimpaired unless pre- 
ferring to veto the whole act.^ Bills thus vetoed 

1 Michigan, 1850; Kansas, 1859. 2 Davis, Tables (1884), 67. 



278 CONSTITUTIONAL STUDIES. 

after adjournment are sent to the next session of the 
Legislature. 

Louisiana's first constitution^ required the Gov- 
ernor to visit the different counties of the State at 
least once in two years, so as to keep informed of the 
military and general condition of the State. Rem- 
nants of the ampler executive functions of Revolution- 
ary times appeared for a while in new constitutions 
of the original commonwealths. That of South Caro- 
lina, for instance, in 1790 authorized the Governor to 
put an embargo not exceeding thirty days upon 
the exportation of provisions, and Vermont in 1793 
authorized embargoes ; while the text of the Massa- 
chusetts instrument to this day preserves unaltered 
the pompous enumeration of a governor's martial 
prerogatives, as in the old days of State sovereignty, 
or earlier still, of charter government. 

The legislatures of the old thirteen States parted 
reluctantly with that public patronage of which 
State organic law at once began to deprive them. 
Lesser official appointments were before 1812 given 
by various new constitutions to the Governor, with 
perhaps the added advice and consent of Senate or 
Council. Secretary of State and Attorney-General 
were thus transferred from the Legislature for choice 
accordingly. But the State Treasurer was still to 
be chosen annually by the joint vote of the Legisla- 
ture, under many such constitutions, and so was it 
with the State auditor, the State printer, and not 
unfrequently with the Secretary of State. ^ Ohio and 
Louisiana^ left the appointment of all other civil 
officers to be directed by law. Town officers were to 

1 1812. 

2 See Pennsylvania, Delaware, Kentucky, New Hampshire (1790- 
1800); Ohio, 1802. 

^ Ohio, 1802; Louisiana, 1812. 



THE EXECUTIVE. 279 

be chosen annually by the people. With regard to 
State militia, the new State of Ohio in 1802 followed 
New England precedent, leaving the line and most 
field officers to be chosen by those who served under 
them, while generals were to be elected by the Legis- 
lature. With a truer military instinct for emergen- 
cies, Louisiana, when admitted next in 1812, gave 
the Legislature full discretion for organizing the 
militia. Vermont's State Treasurer was required to 
settle his accounts yearly, ^ South Carolina made 
provision for two Treasurers, — one to officiate at 
Charleston, and the other at the State capital. 2 
Pennsylvania in 1838 required the State Senate to 
sit with open doors upon appointments to office,^ and 
to confirm or reject by yea or nay vote all nomina- 
tions sent in by the Governor; which provision, 
approved by experience, reappeared in the later 
constitution of 1873. 

The best-laid schemes of State organizers for 
thwarting the popular control of affairs, or trying 
strange experiments, have ignominiously failed in 
this country, and sooner or later the fetters of timid 
expediency are broken. Thus, Louisiana's first ex- 
periment in 1812 of making each popular vote for 
Governor a dual presentation of candidates to the 
Legislature and nothing more,* merged by 1845 into 
a plurality choice at the polls and popular supremacy 
in such elections. A governor for four years with 
the liberal official patronage which this Louisiana 
constitution had bestowed must have been sorely 
beset for pledges meanwhile, when a legislature had 

1 Vermont, 1793. 

2 South Carolina, 1790. 

3 Contrary to senatorial practice in Congress. 

4 A Pennsylvania device of the preceding century, but differently 
applied. 



280 CONSTITUTIONAL STUDIES. 

power to select his rival candidate in his stead. Not 
less temporary was the electoral college expedient of 
the last century, so far as States experimenting with 
it 1 were concerned, though in our Federal constitu- 
tion it remains beyond the easy reach of reform. 
New York's absurd "council of appointment," under 
the instrument of 1777,^ reached, indeed, the zenith 
of plunder and party favoritism in awarding the public 
patronage of that rising State, when the crafty con- 
vention of 1801 in that State (a convention whose 
work was never submitted to the people) defined that 
council as in effect a directory, where the Governor, 
like any other member, must yield to the action of 
its majority. The more popular constitution of 1821 
in the Empire State swept out that conclave of 
patronage, and gave the nominating power to the 
Governor alone, like other commonwealths. And 
by that same later constitution was displaced the 
anomalous "council of revision" of 1777, so that the 
Governor's veto henceforth conformed in New York 
to the usual mode of making a chief magistrate 
solely responsible for revising the acts of a legisla- 
ture.^ Illinois, adopting from New York in 1818 
this same "council of revision," dropped it not less 
emphatically in 1848, for the Governor's power to veto. 
The Maryland convention of 1851, while raising 
the official term from one to four years, applied a 
singular expedient of rotation to the selection of chief 
magistrate. The State was now divided into three 
distinct districts, one of which comprised the area of 
the eastern shore, and another the Baltimore region, 
and it was prescribed that the Governor should be 
taken in rotation from each district. Once more polit- 

1 Maiyland and Kentucky, supra, page 252. 
^ Supra, page 63, 

^ New York's constitution of 1821 was submitted to the people and 
ratified at the polls. 



THE EXECUTIVE. 281 

ical ingenuity for abnormal government defeated its 
own ends, for when the constitution of 1864 went into 
effect the device was dropped. So, too, did Mary- 
land in this 1851 instrument undertake to dispense 
with an attorney-general, by allowing the Governor 
to employ special counsel instead, at a recompense to 
be fixed by the Legislature; but in 1864 the old 
public office was restored. 

While the m6dern tendency in the United States 
has constantly been to give to the Chief Executive 
greater independence of the Legislature, greater 
official discretion, than in earlier times, none the 
less positive has been political progression towards the 
popular control of that great department. But for 
the remarkable growth of particular States in wealth 
and numbers, and a corresponding spread and increase 
of public concerns and patronage as incidental to 
supreme office, the dependence of the Governor upon 
his State constituency would by this time have be- 
come strikingly apparent. About the middle of the 
nineteenth century, State organic law tended clearly 
to submitting the choice of executive subordinates as 
well as principals — all, in fact, of the great officers 
of the commonwealth — to the suffrage of the voters 
at large, rather than leave such selections longer to 
either Governor or Legislature. New York in 1846 
took a prominent lead in that direction; Massachu- 
setts in 1855 followed. Other important States 
earlier or later wrought that important change in 
existing institutions or embodied the principle in 
instruments framed upon their first admission to the 
Union. Under such organic provisions we now find 
Secretary of State, Attorney- General, Auditor, and 
Treasurer elected by the people in most States.^ 

1 Michigan, Louisiana, California (1835-1849). 



282 CONSTITUTIONAL STUDIES. 

Names of new subordinate officials described in 
State constitutions attest the expansion of govern- 
ment still further, — State superintendent of public 
education, State engineer and surveyor, and the 
like.^ County as well as municipal officers were by 
the middle of this century chosen more generally than 
before by the respective constituencies concerned ;2 
among them, county clerks, treasurers, and registers. 
But in the more populous States a great growth of 
public patronage is traceable, which remains subject 
to executive appointment under the usual limitations, 
on lines defined by the State constitution; and com- 
missions or boards, with a rotating membership, have 
come prominently into notice.^ 

As for State elections generally to high executive 
honors, the people by their plurality vote decide the 
choice between candidates at the ballot-box. Virginia 
in 1850 abandoned deliberately for the Governor 
that time-honored method of legislative selection 
which had promoted to the chief magistracy such 
sons and patriots as Henry, Jefferson, and Monroe in 
less degenerate days. But South Carolina alone of 
American commonwealths remained aristocratic in 
structure down to the Civil War, unchanged by the 
influences about her. There an aristocratic legisla- 
ture, in which planters and landowners held the 
preponderating force, chose the Governor, cast the 
votes for Presidential electors, and controlled all 
legislation and public patronage of the State. But 
to the rule of popular choice there is now no State 
exception. 

1 New York, 1846. 

2 As to judicial officers, etc., see next chapter. 

(^ ^ See canal commissioners, codifying commissioners, inspectors of 
prisons, etc., in New York's constitution of 1846, among the earliest 
prganic examples. 



VII. 

THE JUDICIARY. 

The usual pattern for a State judiciary in these 
modern times may be studied in the specific require- 
ments of each fundamental State instrument. Com- 
parison shows that the highest State tribunal (styled 
sometimes a " court of appeals " and sometimes a 
"supreme court") is composed usually of a few indi- 
viduals, often, indeed, of only three, who can so group 
as to supply a majority for deciding each case ; and, 
elected each by the people at large, such members 
rotate, and the court changes gradually. ^ Inferior 
courts, arranged naturally by counties, though not 
unfrequently by arbitrary geographical districts, 
have their own judges for the burden of original liti- 
gation and appeals from the primary tribunals ; while 
judges of municipal or police courts and justices of 
the peace take jurisdiction of petty matters civil and 
criminal in the first instance. Georgia was singularly 
tentative as a State for a long time on this matter of 
a judicial establishment; inferior tribunals shared 
public favor with courts merchant ; nor was it until 
1835 that a supreme court was recognized at all in 
her constitution. Legislative discretion in the erec- 
tion of courts has within a hundred years been largely 
curtailed; and in these days a State constitution 

1 In some late constitutions a prospective increase of judges is pro- 
vided for when the population reaches a certain limit. North Dakota 
(1889). 



284 CONSTITUTIONAL STUDIES. 

generally defines fully the judicial system. Chancery 
courts with special chancellors and a special equity 
jurisdiction prevailed largely in the middle tier of 
old Atlantic States ; while New England cherished a 
dislike of such establishments. But since 1840 the 
fusion of law and equity in American practice, with 
a common jurisdiction for last resort in the highest 
appellate tribunal of the State, has been almost every- 
where accomplished, thus unifying the two systems 
as England also inclines.^ Divorce and matrimonial 
jurisdiction has been taken away altogether from the 
Legislature; probate or orphans' courts are erected 
for the several counties ; and the former participation 
of Executive or Senate in judicial business, some- 
what after the English fashion of a House of Lords, 
has been completely excluded. 

The well-established rule of the mother country, 
that judges should hold office during good behavior, 
was the usual rule in America when our Federal 
constitution was adopted. ^ That constitution, as we 
have noticed, still preserves the English principle, 
well justified by the high renown of its long line of 
honorable incumbents, who, once promoted to the 
bench, have dismissed all other ambition so as to 
devote themselves faithfully and unreservedly to the 
administration of justice for the rest of their activity 
in life. No rule suits so well this delicate adjust- 
ment to the whole Union. So, too, for many years. 
States, new or old, kept for the most part to this 
same rule of judicial incumbency. In all the later 
constitutions of the eighteenth century, save that of 

1 New York, in 1846, so reorganized the State Judiciary as to place 
a court of appeals above the Supremo Court, abolish the office of chan- 
cellor, and blend law and equity functions. See page 66. 

Cliancery jurisdiction was similarly abolished (18.')1-1856) in Mary- 
land and Mississippi. 

2 Supra, page 65. 



THE JUDIGIAHY, 285 

Georgia alone, good behavior continued the tenure,- 
that State of little traditional deference to judges or 
case law, permitting in 1789 only a three years' 
incumbency in its "superior" (then the highest) 
tribunal. 1 For a new example, Ohio entered the 
Union in 1802, prescribing a seven years' term of 
judicial office; but Louisiana, next in 1812, sanc- 
tioned the conservative rule of good behavior. The 
latter standard was maintained much longer ; but con- 
stitutions of the next generation began formulating 
the theory of "a fixed term" for every public office, 
as though in a true democracy no citizen should 
claim therein a vested right. Tennessee, by 1834, 
and Indiana, as early as 1816, affixed accordingly a 
tenure of years to the judicial office. Virginia in 
1850 enlarged the phrase of her famous "Bill of 
Rights " so as to read that " all elections " (those of 
judges included by inference) "shall be free."^ 

The New Hampshire constitution had fixed the 
rigid limit of seventy years of age for judicial capac- 
ity to serve, ^ and a few other States now adopted 
such a limit,* New York narrowing it long before to 
sixty. ^ But such had been the recognized need for 
the bench, of men upright and honest, diligent 
and skilled in their profession, inspiring confidence 
in the whole community, that property qualifications 
for a judge were dispensed with by general consent ^ 
from the earliest days of American independence, and 
probably earlier. Some of our more modem consti- 

1 Cf. Georgia constitutions, 1789, 1798, etc. Under Georgia's con- 
stitution of 1798, the inferior court judges held for good behavior; but 
that tenure was in 1812 reduced to four years. 

2 See page 32. 

3 And for sheriffs also, 1792. 

* Connecticut, 1818; Maine, 1820. 

s See page 6.5. Missouri (1820) set sixty-five years. Nor shall 
one be appointed before he is thirty. Missouri, ih. 

* Supra, page 65. 



286 CONSTITUTIONAL STUDIES, 

tutions, however, declare professional qualifications 
indispensable, such as admission to the bar and ser- 
vice as a practitioner, 1 — the only real or reasonable 
test which a State may apply to judges. 

As for selecting State judges, the choice lay origi- 
nally between direct appointment by the Legislature 
and appointment (subject to Senate or Council confir- 
mation) by the Executive. Towards the close of the 
last century. South Carolina and Tennessee in new 
constitutions preferred a choice by the Legislature. 
Vermont's peculiar constitution joined the single- 
chambered Legislature and the Council for such a pur- 
pose. But Pennsylvania, Delaware, New Hampshire, 
and Kentucky pronounced in their new instruments for 
appointment by the Governor with such confirmation 
by Council or Senate as harmonized with their several 
systems. This course was like that of the Federal 
constitution. Georgia's constitutions of this early 
period were peculiar ;2 and there seems little doubt 
that this uneasy State, where there was much un- 
defined jealousy against law and the lawyers, led 
American commonwealths in point of time as to mak- 
ing judges elective by the people under an organic 
instrument. Of the two States admitted in the new 
century before our second war with Great Britain 
and Napoleon's downfall, Ohio made option of the 
legislative election of judges, and Louisiana of execu- 
tive appointment; and so did States continue to 
divide in their declared preferences until 1830 or 
later. But Mississippi in 1832 declared that all 
judges should be elected by the voters, while Missouri 

1 Kentucky, 1850. See constitutions of North and South Dakota, 
Utah, Washington, etc. (1889-1895). 

2 Cf. 1789 and 1798. Under the latter instrument, "superior" 
court (the highest) judges were to be "elected; " but those of the infe- 
rior courts received appointment from the Legislature. By 1812 the 
inferior court judges were subjected to the test of popular election. 



THE JUDICIARY, 287 

(1822-1835) worked gradually to the same doctrine. 
Indiana, as early as 1816, had determined upon a 
general judicial tenure for seven years ; yet doubtful 
over the method of selecting judges, the convention 
of that new State apportioned the highest of such 
appointments to the Governor, the next in rank to 
the Legislature, and the lowest to the people voting 
in local districts. This compromise was a sign of 
the advancing sentiment; and when in 1851 Indiana's 
constitution was remodelled, the choice of all judges 
from highest to lowest was freely accorded to the 
people. 

In short, the new political idea of limiting judicial 
tenure to a term of years found readier and quicker 
acceptance in these United States than that of elect- 
ing judges at the polls. But change in this latter 
direction was fully ripe by 1850 ; and old States as 
well as new ranged themselves quite generally in 
favor of popular elections as opportunity henceforward 
permitted. New York, Pennsylvania, and Virginia 
led among the old commonwealths that now embraced 
the new faith; Maine and Vermont acceded far 
enough to permit probate and other minor judges to 
be thus locally elected. The last stand for the old 
method was made at the tribunals of final appeal and 
against the choice of supreme judges by the voters 
at large. Massachusetts resisted wholly the new 
departure, and Maine herself in 1876 retreated from 
the partial experiment. But in general the tide of 
innovation has swept steadily on. 

Judges have been made liable to removal, after an 
English rule, in many States. The Governor "shall " 
remove (or, as many States prefer the text, " may " at 
discretion remove) on the address of two-thirds of 
each branch (or, as some States prefer, the majority) 



288 CONSTITUTIONAL STUDIES. 

of the Legislature.^ Other States leave this power 
of removal to the Legislature apart from the Execu- 
tive. ^ Happily, it should be said, this summary 
means of purging the bench has not often been un- 
fairly applied. In many States, on the other hand, 
as under our Federal constitution, such sweeping 
process is wholly ignored; while still other States 
permit a summary removal under cautious qualifi- 
cations ; such as confining the procedure to instances 
of mental or physical inability in the incumbent, or 
requiring, properly enough, that the cause of removal 
shall be plainly set forth of record, and due notice 
first given to the judge himself, that he may appear 
and defend himself.^ Rhode Island's constitution of 
1842 had a singular provision in this respect; it made 
all judges elective in the first instance by the Legisla- 
ture, and each one should hold until a majority of all 
elected to each house should by joint resolution de- 
clare his place vacant. This liability of judges to a 
somewhat arbitrary removal has gained of late years 
such progressive approval in America that we may 
consider it a remedy kept readily in reserve for the 
corrupt and inefficient who have forfeited just con- 
fidence rather than to foster in judges a timid and a 
time-serving dependence upon popular favor. For 
apart from the right of impeachment, which prevails 
almost universally* in this Union, three-fourths of the 
States, or more, now permit removal by the Legisla- 
ture, or by the Governor on legislative address, under 
constraints more or less particular, but in any event 
without any formal indictment and trial, or the need- 

1 Supra, page 67. Kentucky, Pennsylvania, Delaware, Georgia. 
This New Hampshire rule results in various hasty removals, where 

some new political party comes into power. 

2 New York, 1821, which is peculiar in the voting test applied. 

3 Delaware, North Carolina, Maine, etc. 
^ See next chapter, page 296. 



THE JUDIOIART. 289 

ful production of testimony under strict rules of 
evidence.^ 

Obnoxious judges have sometimes been legislated 
out of office in a body by some act of the Legislature 
abolishing the court itself, and creating a new one in 
its place. The rigid formula of so many modern 
constitutions which specify and create courts, instead 
of trusting so largely to legislative erection, as did 
the early State instruments and that of the Federal 
Union, diminishes largely such opportunities; while 
the modern limited tenure and popular choice of the 
judges tend to dispense largely with such a need. 
Special directions are found occasionally in State 
constitutions on this subject; and Virginia, in 1830, 
by way of disapproval, declared that no law abolish- 
ing a court should be construed to deprive a judge of 
his office, unless two-thirds of the Legislature con- 
curred, but such judges might be assigned to other 
duties. 2 

At the present day we find the Judiciary in the 
several States of this Federal Union made more effi- 
cient, more fully independent of Legislature or 
Executive, than ever before, and yet, like those two 
other departments of government, brought under the 
direct control and vigilance of the people. State 
legislatures have been stripped of all judicial func- 
tions formerly exercised, except in the procedure of 
impeachment; and in the mode of appointing judges 
the few States which still hold out against the choice 
by ballot at the polls prefer Federal usage in confiding 
the immediate selection to the Governor, with con- 
firmation by Council or Senate. In four States, per- 
haps, all old ones, the Legislature still chooses. But 
less than one-third of the States in the entire Union 

1 Davis, Tables (1884), 70. 2 And see Ohio, 1851. 

19 



290 CONSTITUTIONAL STUDIES. 

trust any choice of judges but that by popular suf- 
frage ; and of that small fraction, only five States in 
all — Delaware, Florida, Massachusetts, New Hamp- 
shire, and Rhode Island — still preserve that judicial 
tenure of life or good behavior which our Federal 
system so highly commends.^ Whether an elective 
judiciary with service for a fixed term of years is on 
the whole an improvement in modern politics re- 
mains a mooted question; but certain is it that no 
inclination has thus far been shown by the preponder- 
ating States, once committed to this policy, to reverse 
their opinion. ^ Every impulse of the age, indeed, 
tends in this respect to the popular test. There is, 
however, a decided leaning of late towards longer 
terms of judicial office than were favored when the 
reform began, — a new proof of that watchful and 
corrective habit in political experiments which the 
Anglo-Saxon temperament so happily displays; for 
while, about the middle of the present century, the 
tenure was usually fixed at four or six years, we now 
find the highest judges elected for an average term 
of eight years, which populous and wealthy New 
York, where great concerns are litigated, increases 
to fourteen and Pennsylvania to twenty-one.^ An 
incumbency like this last, which is almost tantamount 
to the ordinary life service, and begins with so touch- 
ing a proof of public confidence, may well furnish 
incentive to an honorable emulation. One sees, 
therefore, that even the dreaded jealousy of a democ- 
racy in the State may be tempered by sober sense. 
Appeals for an adequate recompense to the judges do 

1 Davis, Tables, 70, lu Uhode Island and New Hampshire with 
peculiar limits elsewhere noted. 

'^ In 1873, upon the submission of a proposed amendment relating 
to the judges of the highest court, the people of New York by nearly 
Wo to one refused to return to the old mode of appointment. 

"^ But not re-eligible. Pennsylyania, 1873, 



THE JUBIGIART. 291 

not go unheeded ; and though rich remuneration comes 
chiefly to those who devote themselves to private 
practice at the bar, the American bench has never 
yet failed to attract men of honor and more than 
average ability. 

Among miscellaneous constitutional provisions re- 
lating to the judiciary in various States these may be 
noted. Tribunals of conciliation to which parties 
may voluntarily submit shall be favored.^ State 
reports shall be speedily published, and shall be free 
for any one to print, ^ for emolument, except the 
judges themselves.^ Judges shall not charge juries 
as to facts, but may state the testimony and declare 
the law.* Judges shall as often as possible refer in 
their decisions to the particular law on which the 
judgment is founded.^ Judges must render decision 
in ninety days.^ Judges shall have an adequate 
recompense by way of salary and no fees or perqui- 
sites ; such salary shall not be diminished, but may be 
increased; they shall not act as attorney or counsel 
in matters to be tried before them, nor in general be 
interested parties in the official business transacted 
in their courts.'^ They must not even practise law 
while on the bench. ^ And for their better seclusion, 
as also for encouraging a devotion to the duties for 
which they have been set apart, undistracted by 
politics, judges are sometimes declared ineligible to 
public office elsewhere excepting judicial station, 

1 Wisconsin, 1846 ; New York, 1846. See also Georgia, 1789-1835. 

2 California, 1849. 
^ Indiana, 18.51. 

4 Ih. 

^ Louisiana, 1812, with a civil code. 

^ Rather a questionable requirement so far as fixing specific limits 
is concerned. California, 1879. 

"^ See New Hampsliire as early as 1792. Recent constitutions (1889) 
of new States contain such provision. 

8 California, 1879. 



292 CONSTITUTIONAL STUDIES. 

during their respective terms of service. ^ Special 
provisions are sometimes found concerning the 
method and limitation of suits against the State. 

There are still a few States of this Union in which 
the Governor (and perhaps, too, the Legislature) may 
ask in advance the formal opinion of the judges of 
the highest court for public guidance ; ^ but usually 
no opinion can be procured from the judiciary of a 
commonwealth except through the ordinary channel 
of litigation and the formality of a test case duly 
argued. 

The common practice in this country about 1789 
was for a court to appoint its own clerk ; and a clerk 
might serve, like the judge, for good behavior. A 
judge often bestowed the easy office upon a son or 
kinsman. Ohio in 1802 required sheriffs and justices 
of the peace to be locally elected by the voters ; and 
this rule grew gradually into State favor. The 
county prosecuting officers were formerly appointed 
to a considerable extent by the Executive. The 
modern revolution, however, in favor of fixed tenure 
and popular elections for all officers of a State, has 
swept into the patronage of the voters, clerks, sheriffs, 
marshals, district attorneys, and registers, as well as 
the judicial incumbents of the courts with which 
such officers are connected, from lowest to highest. 
In States disposed to economize the offices, the 
county clerk has sometimes been designated to serve 
as clerk of a county court, while the Secretary of 
State officiates as clerk of the highest appellate 
tribunal.^ 

The increased momentum of the judicial power in 
the United States chiefly results (1) from the idea 

1 California, 1879. 

2 Supra, page 67; Florida, 1875; South Dakota, 1889. 

3 New Jersey, 1844. 



CONSTITUTIONAL INTERPRETATION. 293 

gradually evolved in American politics that the 
written constitution, the local fundamental law of 
any State, shall be regarded as a sovereign emanation 
from the people, for defining and portioning out the 
respective functions of well-ordered government, and 
while confining each co-ordinate branch of such gov- 
ernment to its own legitimate sphere, keeping all 
three of them from encroaching upon the reserved 
rights of the individual citizen ; (2) as the corollary 
of such a proposition, from the necessity of finding 
some constant safeguard and exponent of such funda- 
mental law, so that Executive and Legislature, the 
originators more particularly of public policy for 
present and future, shall be kept to the equilibrium of 
fundamental constraints by some force consistent with 
normal tranquillity. That safeguard and exponent 
has been found, both in State and Federal systems, 
in the tranquil and deliberate oversight of the Judici- 
ary, — a tribunal devoted to revision of the past, 
co-ordinate as far as possible with these more active 
and aggressive departments, yet equally independent 
in fundamental theory, and equally bound to regard 
the will of the people as constitutionally expressed. 
The courts accordingly compare the acts of these 
other departments with the written constitution, and 
as to acts of legislation, most particularly, whose 
scope might otherwise be resistless by the individual, 
pronounces them invalid and of no effect, if in fun- 
damental conflict. Foreign observers of our insti- 
tutions marvel that such a mechanism of constraint 
can be practically applied, and they pronounce its 
application confusing; yet they freely admit that 
the mechanism works, and at this long distance of 
time works easily. 

Such arbitrament works all the better because no 
violent array is brought up against Executive or 



294 CONSTITUTIONAL STUDIES. 

Legislature, because the test case made is that of 
private individuals, and because argument is heard, 
delay accorded, and the public mind, well prepared 
to doubt whether the act complained of were really 
consistent with organic law, learns in due time the 
decision and its reasons. The test case comes to 
judgment; the particular judgment is enforced; and 
the people, and they, too, of co-ordinate departments 
of the government whose pride is not wounded, and 
whose agents have perhaps already changed, concede 
that the judgment for one individual contestant ought 
to prevail equally for all other private contestants 
similarly situated. Cheerful acquiescence in the 
decision of the highest appellate tribunal becomes 
doubly the policy of fairness, — a maxim like that of 
acquiescence in the political will of a majority; and 
even were resistance continued, the court's process is 
available to all other individuals in turn who feel 
aggrieved, and disobedience to the law-makers be- 
comes obedience to the State. Thus does wrong- 
ful and despotic legislation become sapped of its 
mischief. 

The idea of a power thus overriding the enactment 
of a legislature was not wholly new to American 
citizens in 1789, but existed to some extent in 
colonial and Revolutionary times ; and in the national 
era which has succeeded that date, the Supreme 
Court of the United States simply exerts on a new 
and more comprehensive scale, and with a more 
imposing fundamental operation, what States inde- 
pendent of Great Britain had severally begun to 
exercise in the intervening years through their own 
highest tribunals.^ Perfect government is gained in 
this inherent operation of fundamental law of the 
land, when general acquiescence is peacefully given 

1 See "Atlantic Monthly," November, 1884. 



CONSTITUTIONAL INTERPRETATION 295 

both by the peojjle and the public departments, so 
that the Executive desists from enforcement, and the 
Legislature repeals the devitalized statute without 
further controversy. For even supposing the court 
to have registered an unrighteous decision (which is 
seldom), it is better that the people, who make and 
unmake judges and other public servants, shall defer 
to the decision until their own peaceful opportunity 
comes to reorganize and reconstruct. 

The field of the American Judiciary becomes thus 
immensely enlarged as appellate judges in a State 
become thus the conservators of organic law. The 
judges represent, as a recent writer has well expressed 
it, "the deeper and more abiding popular sense of 
order and justice; " and the court, no less an instru- 
ment of the people than the Legislature, reflects the 
public sentiment in a deeper, calmer, more lasting 
form, embodying popular aspirations after an ideal 
of perfect order. ^ 

1 Horace Davis's American Constitutions, 61. 



VIII. 

MISCELLANEOUS ; CONCLUSION. 

Impeachment by the Legislature for the removal of 
public officers is a process still sanctioned almost 
everywhere in our American States, Oregon long 
constituting the sole exception. Impeachment pro- 
visions in the Federal constitution furnish, with some 
local variations, the usual model in this respect. But 
the cumbrousness and uncertain result of all such 
political trials have induced contempt for the pro- 
cedure ; so that in consequence some States are now 
disposed to extend the summary removal of public 
officers by address or joint resolution as a legislative 
substitute ; ^ while others empower the Governor, 
whenever charges are preferred against subordinates, 
to suspend or remove the culprits from office, and 
to institute criminal prosecution against them in the 
courts. Elections at frequently recurring intervals 
and the popular test for all high officers of State, 
judges included, must largely dispense with the 
necessity of impeachment. Some modern State con- 
stitutions expressly confine impeachment by the 
Legislature to high officials, making all the lesser 
public servants liable to indictment and trial in the 
courts, and even to judicial removal, in case of con- 
viction, as part of the punishment. ^ 

1 See Louisiana, 1812; Indiana, 1851 ; page 288. 

2 Tennessee, 1834. And see California, 1848; Oregon, 1857. 



MISCELLANEOUS PROVISIONS, 297 

We have observed in the States of this century a 
growing insistence upon geographical residence as a 
test of the right to vote or hold office. Qualification, 
or rather clear definition, of this rule finds occasion- 
ally an organic recognition ; thus absence from home 
on business of the State or Union shall not deprive 
one of such residential rights.^ The chief officers of 
State are specially required under various constitu- 
tions to reside at the seat of government, ^ and to 
keep the records there, while county officers are 
similarly enjoined. States, while seldom liberal, 
have sometimes been parsimonious respecting public 
salaries; as when Tennessee's constitution in 1T96 
prescribed a maximum limit for such recompense in 
specific instances, yet named no minimum. "All 
salaries and fees shall be moderate," enjoins Delaware 
in 1792, " and receipts which specify particulars shall 
be given for all official fees." ^ The Legislature shall 
determine what deductions shall be made from the 
salaries of public officers for neglect of duty. Among 
citizens specially enumerated as ineligible to State 
office v/e find ministers of the gospel,* army and navy 
contractors, persons in the service of the United 
States, and those, moreover, convicted of bribery or 
infamous crimes. Plurality of offices, State and 
national, is frequently forbidden in State instruments. 
Virginia in 1850 disqualified every salaried officer of 
a bank or attorney for the commonwealth from sitting 
in the Legislature. Delaware has been the latest 

1 Kentucky, 1799. 

2 Michigan, 1835 ; Indiana, 1851, etc. Louisiana's early constitution 
of 1812 declares that all civil ofiicers for the State at large shall reside 
within the State ; and all district or county officers within their respec- 
tive districts or counties, and shall keep their respective offices at such 
places therein as may be required by law. 

3 Delaware, 1792. 
* Supra, page 68. 



298 CONSTITUTIONAL STUDIES. 

State in the Union, apparently, to retain a property 
qualification, somewhat as in the last century. ^ Re- 
ligious qualification was ignored so generally in new 
State constitutions early in this century that it seemed 
a relic of old times when Arkansas, as late as 1836, 
declared upon admission to the Union that no atheist 
should hold office nor be an admissible witness in the 
courts. But North Carolina as late as 1876 renewed 
the atheist disqualification of her earlier constitution; 
and a few other instruments of old States are of the 
same purport. ^ 

Following the traditions of her colonial age, Con- 
necticut, far into the nineteenth century, maintained 
two State capitals, Hartford and New Haven, where 
the Legislature was required to hold alternate ses- 
sions; but since 1873 Hartford has absorbed the 
honor of State residence. Rhode Island, with a 
similar colonial history, still pursues that old custom 
of double headquarters at Providence and Newport. 
In all other States of the Union one capital city has 
always sufficed, and from the very outset of the nine- 
teenth century we see the Federal rivalry of 1789 
reproduced, and the strife of local settlements emulous 
for selection as the seat of government, shaping the 
expression of conventions, under whose guidance 
Territories were ushered into the Union as full-grown 
States. Thus Ohio in 1802 declares Chillicothe the 
seat of State government until 1808, and forbids 
money to be raised until 1809 for erecting any State 
House. Louisiana in 1812 orders the State capital to 

1 For the Senate. A convention has (1897) ordained a new con- 
stitution for Delaware. A peculiarly obstructive method of calling 
a State convention under the old organic law (namely, the vote of an 
average representative majority of the people) hindered the needful 
popular assent earlier. 

'^ See supra, page 230. 



STATE CAPITALS, ETC. 299 

continue at New Orleans until removed by law. By 
the middle of this century the location of the seat of 
government in a new State had become a prize for 
keen and speculative competition; so that tiie con- 
vention which framed the organic instrument for 
submission to Congress would often evade the choice 
of more than a temporary capital, leaving the perma- 
nent one to be fixed later by the Legislature, under 
the proviso that a State or even a county seat of 
government once deliberately selected should not be 
changed again at discretion. Oregon in 1857 made 
the majority vote of the people indispensable to 
every proposal for capital removal, — a wise precau- 
tion, since schemes of the kind turn usually in the 
Legislature upon local jobbery and debasement. State 
boundaries are defined, and the fundamental condi- 
tions with Congress concerning admission are seen 
set forth in the constitutions of most new States of 
modern times ; and a schedule is conveniently affixed 
to new constitutions in general for temporary details 
connected with the new establishment. 

The revision and codification of State laws, at once 
or at some later specified period, is found a feature of 
many State constitutions in modern times ; and com- 
missions for that purpose, or for devising improve- 
ments in the penal and practice codes, are sanctioned 
accordingly. 1 Lideed, commissions of three or more 
have multiplied much as the drudgery of State busi- 
ness increases; and boards of commissioners, gradu- 

^ See this idea emanating early in the southwestern region, as in 
Alabama, 1819, and Missouri, 1820. By 1846 New York set an exam- 
ple in that respect since largely followed. But Michigan, in 18.50, for- 
bade all general revision of laws in the future, pointing out a simpler 
method of reprinting, in the government publication, by way of substi- 
tute. Whatever State legislatures might have ordered in such States 
as Virginia and Massachusetts without constitutional direction, Georgia's 
constitution of 1798 is seen directing that within five years the body of 
laws of that State, civil and criminal, should be digested. 



300 CONSTITUTIONAL STUDIES. 

ally rotating, came into vogue by 1850, to supplant 
single heads for bureau service of a commonwealth. 

The old thirteen States, once colonies, received no 
liberal gifts for education from the Federal Union of 
1789, such as endow common public instruction so 
liberally in States west of the Alleghanies from the 
proceeds of the Federal public lands. Some of these 
original States, however, have had public educational 
funds of their own creation; that, for instance, of 
Connecticut, known as the common-school fund, and 
excellently managed; and New York had a similar 
endowment. 1 Knowledge, virtue, literature, and the 
common schools — the latter free from sectarian con- 
trol — are all repeatedly commended in the organic 
law of these United States, superintendents of State 
education being specially provided. Asylums for 
the poor and feeble gain provision also ; and the State 
almshouse, and State institutions for the insane, 
blind, deaf and dumb, are seen by 1850 among the 
public institutions recognized by the fundamental 
law of the people. Humane sentiments make con- 
stant advance, and organic prohibitions multiply 
against duels and lotteries, ^ as well as the older 
offences enumerated. The evil practice of duelling, 
which had cost so many distinguished lives, was by 
1850 not unfrequently denounced as a disqualification 
for office ; and Texas in 1845 required an oath to be 
taken by every State officer and member of the Legis- 
lature that he had not fought nor been second in a 
duel since the State constitution was adopted. 

Tennessee's constitution at the time of her admis- 

1 Connecticut, 1818; New York, 1821 ; supra, page 228. 

- See Maryland (1851) and other States (1851-1860). Previous to 
1800, lotteries had been widely recognized in America as a suitable 
mode of raising funds on behalf of charity, religion, and public 
improvements. 



MUNICIPAL GOVERNMENT. 301 

sion to the Union in 1796 contained a protective 
clause, exempting from taxation all articles manu- 
factured from the produce of the State. During the 
era of this century that State internal improvements 
made an absorbing issue in national politics, some of 
our local constitutions exhorted the Legislature to 
encourage such projects, while others, forbade or 
restrained all expenditures of the kind.^ By 1860 
the condemnation of such costly enterprises at the 
expense of the State had become general. New 
York's constitutions have taken special concern in 
protecting and developing the salt springs of the 
State and the Erie and Champlain canals, ^ ordaining 
in 1846 that these public sources of wealth should 
never be sold. Indiana has enclosed as a sacred 
precinct the Tippecanoe battle-field; and Maryland 
her State House square and grounds at Annapolis, 
while New York seeks to rescue from private waste 
or depredation the Adirondack forests and the water 
supply of the Hudson and Mohawk valleys. 

The increasing tendency of an American popula- 
tion to swarm at central points of the commonwealth, 
to the detriment of town representation and the old 
uniform local government by selectmen and town 
meeting, drew general notice before this century had 
far advanced. New York in 1821 ordained that 
mayors of all cities in that State should be chosen by 
the respective common councils, but in 1833 per- 
mitted the mayor of New York City to be elected at 
the polls. Massachusetts in 1822 by a constitutional 
amendment authorized the Legislature of the State to 
incorporate cities wherever there were twelve thou- 
sand inhabitants, and the local voters desired such 

1 Cf. Missouri, Tennessee, Alabama, Mississippi, Michigan, Florida, 
and Texas (1819-1845). 

2 New York, 1833, 1835. 



I 



302 CONSTITUTIONAL STUDIES. 

change of government. Since the Civil War, State 
constitutions, having large cities within the jurisdic- 
tion, are seen devoting much detail to that increas- 
ingly difficult subject of municipal self-government. 
Thus, Maryland in 1867 makes lengthy provision 
regarding the government of Baltimore. One muni- 
cipal change which the recent New York convention 
of 1894 favored is that of separating such municipal 
elections from those of State or national officers, and, 
by making them local and distinct, concentrate the 
voter's attention to candidates detached from other 
issues. In comprehensive schemes, however, for 
municipal government, States are still confessedly in 
the experimental stage of a most gigantic problem; 
it may be said that of divided responsibilities, multi- 
plied checks and balances, and varying terms of civic 
servants, the present age seems heartily sick; and 
dispensing with councils or mimic representative 
assemblies, the remedy of the hour, which may or I 
may not prove finally effective, is that of establishing 
a business man's government, controlled essentially 
like a private business corporation, with powers con- 
centrated in a commission or single executive whom 
a board of aldermen can but slightly restrain.^ 

The political tendency has been in many States 
for the legislative majority, on behalf of rural con- 
stituencies, to take a great metropolis in hand, med- 
dling in its morals by a State board of police, and 
regulating and experimenting with its municipal gov- 
ernment ; but some late constitutions react a little in 
favor of that home rule and local influence which all 
good citizens must cherish while republics endure. ^ 

1 The mayor of any city may make official objection or "veto" 
within fifteen days to bills of the Legislature which affect the city's 
domestic affairs. New York, 1894. 

2 New York's 1894 amendments classify the cities of that State 
According to relative population; and as to cities of the first class 



A POPULAR REFERENCE. 303 

"We have elsewhere traced the growth of that fun- 
damental doctrine which required the submission of 
constitutions and of constitutional amendments to 
the voters. Towards the middle of this century such 
convenient reference to the people became a resort 
for relieving a State convention of various trouble- 
some decisions upon such fundamental propositions 
as granting suffrage to the colored race in a free 
commonwealth; and thence the further advance was 
easy for a convention to authorize a legislature to 
frame other specific issues of a like perplexing kind 
for the voters. Thus the Wisconsin convention in 
1848 permitted a popular reference by the Legislature 
of "bank or no bank," the creation or non-creation of 
such corporations to depend upon the will of the 
popular majority as expressed at the polls. The 
creation of public debt for certain purposes was so 
referred in various instances. The liquor question, 
too, where those who would prohibit in a State alto- 
gether conflict with the promoters of a license, 
became about 1850, as it has been ever since, an 
issue for popular referendum under State constitu- 
tions,^ with later a "local option" application as 
between the two plans in the various towns and cities. 
Taxation and other provisions are seen framed in the 
modern organic law of several States never to be 
changed without a referendum to the people. In 
many States a referendum is regularly made to the 
people at specific periods, such as twenty years, on 
the question of calling a constitutional convention. 
And States are already agitating a new and final 
advance in the same direction which shall require the 
submission of all enactments by the Legislature to 

empower a mayor to guard as chief executive the interests of the 
comraunit}^ against injurious legislation. 
1 Ohio, 1851. 



304 CONSTITUTIONAL STUDIES. 

the same final sanction of the people at the polls. 
Ancient experience shows the unfitness of a plebis- 
citum for framing and originating measures in a free 
republic of more than moderate population, but not, 
in matters of general concern, for considering the 
adoption of what some representative body has pro- 
posed in concrete form. 

The Anglo-Saxon temperament has held sway thus 
far throughout the Union; and, whether in the old 
French and Spanish annexations of territory and 
inhabitants, or that incongruous immigration from 
abroad which pours in so constantly over the whole 
area, foreign elements have been easily assimilated. 
To this predominance of the primitive race and char- 
acter through all such admixture, the stability of our 
institutions is immensely owing. New States have 
spread the influence of English ideas in law and 
literature, and the mother tongue is the language of 
this continent. Louisiana, on her admission in 1812, 
ordained that all laws of the Legislature, and all 
judicial and legislative proceedings, should be pro- 
mulgated, preserved, and conducted in the same 
language as that of the constitution of the United 
States. 1 California, more yielding to her native 
element, announced in 1849 that all laws or decrees 
requiring publication should be published in English 
and Spanish; but the former style has gained the 
mastery. The genius of republican free government 
on this continent is Anglo-American. 

In conclusion, we are impressed by the progres- 
sive strength of the two great forces of this American 

1 It was conceded, however, in the Louisiana constitution of 1845, 
that the Secretary of the State Senate and Clerk of the State House 
of Representatives should bo conversant with both English and French, 
and that members might address the Legislature in either language. 



FINAL OBSERVATIONS. 305 

Union, the centripetal and the centrifugal, in their 
constant relation to one another, as the whole undi- 
vided people advance to continental empire. The 
Federal government, now fitly styled national, stirs 
best the spirit of public pride and love of glory, 
because of its splendid historical achievements, and, 
since the Civil War, its sure foundation in the 
American heart. Exercising with energy such para- 
mount functions of sovereignty as those of war, peace, 
foreign relations, commerce, territorial acquisition 
and development, the post-office, immense resources 
of taxation which are exclusive as respects tariff and 
the customs ; symbolized in the national flag and con- 
trolling the only active and permanent army and 
navy of the people ; regulating the mutual intercourse 
of States and their inhabitants in essential particulars, 
— the United States government with its continuity 
of administration is at length easily paramount. But 
in the several States, — prosaic by comparison, 
whether in area, population, or the scope of ostenta- 
tious action, — we see the multiplying nurseries of 
self-government, the abodes where public spirit and 
confident experience in free institutions must still be 
generated while generated at all. Here originate 
constitutional reforms and the inventions of democracy 
to curb and regulate all rulers ; and in these jurisdic- 
tions will popular liberty maintain its last stand, 
should the Union, ages hence, fall asunder. Cor- 
ruption that corrodes, despotism that oppresses, vice 
that unnerves, need only be feared when poisoning 
such fountain-heads. 

Humble as may be the field of local achievement in 
this Union, material as may appear State ends and 
inconsequential State public routine, the study of 
republican institutions is an exceedingly interesting 
one which these several commonwealths furnish. 

20 



306 CONSTITUTIONAL STUDIES. 

Political geography reckons usually by nations alone 
and their chief cities ; and of State political divisions 
in America the outer world makes scarcely more 
account than would we of the counties or provinces 
which make up England, France, or Germany; all 
the more so that while homogeneousness continues in 
a national sense, States with merely artificial bounda- 
ries multiply. Yet, while the Federal constitution 
has yielded but little to structural reform for more 
than a hundred years, State instruments abound in 
improved ideas of government which deserve to be 
nationalized. 

Our first impression, perhaps, as we approach the 
study of these documents, is unfavorable. So much 
constitutional detail seems needless. We object that 
something ought to be left to the discretion of the 
governing power, that the closest ligature of parch- 
ment offers no adequate guaranty of good government. 
But when we have well studied and compared State 
constitutions, such prejudice softens ; we discern that 
the modern governing power in the American com- 
monwealth is not the agent, but the principal, not 
individual ambition, but the general opinion. We 
realize that a constitution becomes the most impera- 
tive of written law, because the enactment of the 
people. Breadth, not intolerance, characterizes these 
later schemes of State government. Dislike of 
monopolies, of class and money-making privileges, 
though visible, is not destructively manifested. If 
some impertinent or niggardly constraint can be 
pointed out in a State constitution, it is only on rare 
occasion. If rulers seem now and then hampered in 
action, it is because the ruled are "subjects," in the 
old-world sense, no longer; because American citizens 
are keenly sensitive to public shortcomings, and 
apprehend the temptations which beset those placed 



FINAL OBSERVATIONS. 307 

temporarily over them by their own suffrage. Sooner 
or later the best thought of each community, of busi- 
ness men, of journalists, of university scholars, of 
literary writers, of those who make a comparative 
study of politics and government, of professional 
men and philosophers, as well as of recognized politi- 
cal leaders, has gone into the marrow of these State 
constitutions. Republican home government finds 
here the widest scope and expression; experiments 
bring results ; and expedients for reform soon develop 
vital principles. The whole outlook of such progres- 
sion is hopeful, since the salvation of self-govern- 
ment lies in a continuous sense of honor and patriotism 
among the people, and in the courageous determina- 
tion, moreover, of the majority to correct whatever 
practical mischief public administration may at any 
time bring to light. The American people, as a 
mass, are far from being hasty and capricious in 
ordering fundamental changes. Even in the great 
mass of statutes churned out periodically by the 
several State legislatures, those who explore inform 
us that the really important changes of written law 
are few and unfrequent; and our present study of 
institutions convinces us that in organic political 
reforms as well, the conservative instinct of the 
American people is very great. The inertia of the 
mass opposes those who are actively pushing for new 
results. 

The grandeur of our American example in the 
world's history seems well assured, if only two dangers 
be well guarded against. One of these, which is 
fostered by the exceeding laxity of the Federal 
power originally given in that respect to Congress, 
or assumed, concerns the future territorial expan- 
sion of this Union ; and it might be well if a con- 
stitutional amendment should guaranty in this respect 



308 CONSTITUTIONAL STUDIES. 

a better constraining right to the people. The new 
and remote annexation of a people unfitted to mingle 
in self-government, and of a foreign country not 
contiguous, may imperil the experiment of the fathers 
in some future era of "manifest destiny." The other 
danger lies in the excrescent growth of political 
agencies for organizing the voters, massing cohorts 
for the candidates, and making selfish spoils of the 
public patronage. Against this latter evil should be 
set the best mental and moral enlightenment of the 
people, so that citizens may grow up good patriots, 
able to combine and co-operate for noble ends with- 
out arrogance or class spirit. That virtue which 
has well been pronounced by Montesquieu the ani- 
mating spirit of a republic is in its essence patriotism, 
— a burning passion for one's own country, and a 
desire to advance always its true good and greatness. 
Though latent in commonplace times, such patriotism, 
when intelligently directed, becomes an overwhelm- 
ing force for the general good in times of danger. 



CONSTITUTION 

OF THE 

UNITED STATES OF AMERICA. 



We the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, 
provide for the common defence, promote the general welfare, 
and secure the blessings of liberty to ourselves and our posterity, 
do ordain and establish this Constitution for the United 
States of America. 

ARTICLE I. 

Sect. 1. All legislative powers herein granted shall be 
vested in a Congress of the United States, which shall consist 
of a Senate and a House of Representatives. 

Sect. 2. The House of Representatives shall be composed 
of members chosen every second year by the people of the 
several States, and the electors in each State shall have the 
qualifications requisite for electors of the most numerous branch 
of the State Legislature. 

No person shall be a Representative who shall not have at- 
tained to the age of twenty-five years, and been seven years a 
citizen of the United States, and who shall not, when elected, 
be an inhabitant of that State in w^hich he shall be chosen. 

Representatives and direct taxes shall be apportioned among 
the several States which may be included within this Union, 
according to their respective numbers, which shall be deter- 
mined by adding to the whole number of free persons, includ- 
ing those bound to service for a term of years, and excluding 
Indians not taxed, three fifths of all other persons. The actual 
enumeration shall be made within three years after the first 
meeting of the Congress of the United States, and within every 
subsequent term of ten years, in such manner as they shall by 
law direct. The number of Representatives shall not exceed 



310 CONSTITUTION OF 

one for every thirty thousand, but each State shall have at least 
one representative ; and until such enumeration shall be made, 
the State of New Hampshire shall be entitled to choose three, 
Massachusetts eight, Rhode Island and Providence Plantations 
one, Connecticut five. New York six, New Jersey four, Pennsyl- 
vania eight, Delaware one, Maryland six, Virginia ten, North 
Carolina five. South Carolina five, and Georgia three. 

When vacancies happen in the representation from any 
State, the Executive authority thereof shall issue writs of elec- 
tion to fill such vacancies. 

The House of Representatives shall choose their Speaker and 
other officers ; and shall have the sole power of impeachment. 

Sect. 3. The Senate of the United States shall be com- 
posed of two Senators from each State, chosen by the Legis- 
lature thereof, for six years ; and each Senator shall have one 
vote. 

Immediately after they shall be assembled in consequence of 
the first election, they shall be divided as equally as may be into 
three classes. The seats of the Senators of the first class shall 
be vacated at the expiration of the second year, of the second 
class at the expiration of the fourth year, and of the third class 
at the expiration of the sixth year, so that one third may be 
chosen every second year ; and if vacancies happen by resigna- 
tion, or otherwise, during the recess of the Legislature of any 
State, the Executive thereof may make temporary appointments 
until the next meeting of the Legislature, which shall then fill 
such vacancies. 

No person shall be a Senator who shall not have attained to 
the age of thirty years, and been nine years a citizen of the 
United States, and who shall not, when elected, be an inhabitant 
of that State for which he shall be chosen. 

The Vice-President of the United States shall be President 
of the Senate, but shall have no vote, unless they be equally 
divided. 

The Senate shall choose their other officers, and also a Presi- 
dent pro tempore, in the absence of the Vice-President, or when 
he shall exercise the office of President of the United States. 

The Senate shall have the sole power to try all impeach- 
ments. When sitting for that purpose, they shall be on oath or 
affirmation. When the President of the United States is tried, 
the Chief Justice shall preside : and no person shall be con- 
victed without the concurrence of two thirds of the members 
present. 



THE UNITED STATES. 311 

Judgment in cases of impeachment shall not extend further 
than to removal from office, and disqualification to hold and 
enjoy any office of honor, trust, or profit under the United 
States : but the party convicted shall nevertheless be liable and 
subject to indictment, trial, judgment, and punishment, accord- 
ing to law. 

Sect. 4. The times, places, and manner of holding elec- 
tions for Senators and Representatives shall be prescribed in 
each State by the Legislature thereof ; but the Congress may 
at any time by law make or alter such regulations, except as to 
the places of choosing Senators. 

The Congress shall assemble at least once in every year, and 
such meeting shall be on the first Monday in December, unless 
they shall by law appoint a different day. 

Sect. 5. Each House shall be the judge of the elections, 
returns, and qualifications of its own members, and a majority 
of each shall constitute a quorum to do business ; but a smaller 
number may adjourn from day to day, and may be authorized 
to compel the attendance of absent members, in such manner, 
and under such penalties, as each House may provide. 

Each House may determine the rules of its proceedings, pun- 
ish its members for disorderly behavior, and, with the concur- 
rence of two thirds, expel a member. 

Each House shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may in 
their judgment require secrecy ; and the yeas and nays of the 
members of either House on any question shall, at the desire 
of one fifth of those present, be entered on the journal, 

Neither House, during the session of Congress, shall, with- 
out the consent of the other, adjourn for more than three days, 
nor to any other place than that in which the two Houses shall 
be sitting. 

Sect. 6. The Senators and Representatives shall receive a 
compensation for their services, to be ascertained by law, and 
paid out of the Treasury of the United States. They shall in 
all cases, except treason, felony, and breach of the peace, be 
privileged from arrest during their attendance at the session of 
their respective Houses, and in going to and returning from 
the same ; and for any speech or debate in either House they 
shall not be questioned in any other place. 

No Senator or Representative shall, during the time for 
which he was elected, be appointed to any civil office under the 
authority of the United States, which shall have been created. 



312 CONSTITUTION OF 

or the emoluments whereof shall have been increased, during 
such time ; and no person holding any office under the United 
States shall be a member of either House during Ms continu- 
ance in office. 

Sect. 7. All bills for raising revenue shall originate in the 
House of Representatives ; but the Senate may propose or con- 
cur with amendments as on other bills. 

Every bill which shall have passed the House of Representa- 
tives and the Senate shall, before it become a law, be presented 
to the President of the United States ; if he approve he shall 
sign it, but if not he shall return it with his objections to that 
House in which it shall have originated, who shall enter the 
objections at large on their journal, and proceed to reconsider 
it. If after such reconsideration two thirds of that House shall 
agree to pass the bill, it shall be sent, together with the objec- 
tions, to the other House, by which it shall likewise be recon- 
sidered, and, if approved by two thirds of that House, it shall 
become a law. But in all such cases the votes of both Houses 
shall be determined by yeas and nays, and the names of the 
persons voting for and against the bill shall be entered on the 
journal of each House respectively. If any bill shall not be 
returned by the President within ten days (Sundays excepted) 
after it shall have been presented to him, the same shall be a 
law, in like manner as if he had signed it, unless the Congress 
by their adjournment prevent its return, in which case it shall 
not be a law. 

Every order, resolution, or vote to which the concurrence of 
the Senate and House of Representatives may be necessary 
(except on a question of adjournment) shall be presented to the 
President of the United States ; and, before the same shall take 
effect, shall be approved by him, or, being disapproved by him, 
shall be repassed by two thirds of the Senate and House of 
Representatives, according to the rules and limitations pre- 
scribed in the case of a bill. 

Sect. 8. The Congress shall have power, — 

To lay and collect taxes, duties, imposts, and excises to pay 
the debts and provide for the common defence and general 
welfare of the United States ; but all duties, imposts, and ex- 
cises shall be uniform throughout the United States; 

To borrow money on the credit of the United States ; 

To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes ; 

To establish an uniform rule of naturalization, and uniform 



THE UNITED STATES. 313 

laws on the subject of bankruptcies throughout the United 
States ; 

To coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures; 

To provide for the punishment of counterfeiting the securi- 
ties and current coin of the United States ; 

To establish post-offices and post-roads ; 

To promote the progress of science and useful arts, by secur- 
ing for limited times to authors and inventors the exclusive 
right to their respective writings and discoveries; 

To constitute tribunals inferior to the Supreme Court ; 

To define and punish piracies and felonies committed on the 
high seas, and offences against the law of nations ; 

To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water ; 

To raise and support armies, but no appropriation of money 
to that use shall be for a longer term than two years ; 

To provide and maintain a navy ; 

To make rules for the government and regulation of the land 
and naval forces ; 

To provide for calling forth the militia to execute the laws 
of the Union, suppress insurrections, and repel invasions ; 

To provide for organizing, arming, and disciplining the mili- 
tia, and for governing such part of them as may be employed 
in the service of the United States, reserving to the States re- 
spectively, the appointment of the officers, and the authority of 
training the militia according to the discipline prescribed by 
Congress ; 

To exercise exclusive legislation, in all cases whatsoever, over 
such district (not exceeding ten miles square) as may, by ces- 
sion of particular States, and the acceptance of Congress, be- 
come the seat of the government of the United States ; and to 
exercise like authority over all places purchased by the consent 
of the Legislature of the State in which the same shall be, for 
the erection of forts, magazines, arsenals, dock-yards, and other 
needful buildings ; and 

To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other 
powers vested by this Constitution in the government of the 
United Stated, or in any department or officer thereof. 

Sect. 9. The migration or importation of such persons as 
any of the States now existing shall think proper to admit, 
shall not be prohibited by the Congress prior to the year one 



314 CONSTITUTION OF 

thousand eight hundred and eight, but a tax or duty may be 
imposed on such importation, not exceeding ten dollars for 
each person. 

The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when in cases of rebellion or invasion the public 
safety may require it. 

No bill of attainder or ex post facto law shall be passed. 

No capitation or other direct tax shall be laid, unless in pro- 
portion to the census or enumeration herein before directed to 
be taken. 

No tax or duty shall be laid on articles exported from any 
State. 

No preference shall be given by any regulation of commerce 
or revenue to the ports of one State over those of another ; nor 
shall vessels bound to, or from, one State, be obliged to enter, 
clear, or pay duties in another. 

No money shall be drawn from the treasury, but in conse- 
quence of appropriations made bylaw ; and a regular statement 
and account of the receipts and expenditures of all public 
money shall be published from time to time. 

No title of nobility shall be granted by the United States ; 
and no person holding any oflBce of profit or trust under them 
shall, without the consent of the Congress, accept of any pres- 
ent, emolument, office, or title, of any kind whatever, from any 
king, prince, or foreign state. 

Sect. 10. No State shall enter into any treaty, alliance, or 
confederation; grant letters of marque and reprisal; coin 
money ; emit bills of credit ; make anything but gold and silver 
coin a tender in payment of debts ; pass any bill of attainder, 
ex post facto law, or law impairing the obligation of contracts, 
or grant any title of nobility. 

No State shall, without the consent of the Congress, lay any 
imposts or duties on imports or exports, except what may be 
absolutely necessary for executing its inspection laws ; and the 
net produce of all duties and imposts, laid by any State on im- 
ports or exports, shall be for the use of the treasury of the 
United States ; and all such laws shall be subject to the revision 
and control of the Congress. 

No State shall, without the consent of Congress, lay any duty 
of tonnage, keep troops or ships of war in time of peace, enter 
into any agreement or compact with another State, or with a 
foreign power, or engage in war, unless actually invaded, or in 
such imminent danger as will not admit of delay. 



THE UNITED STATES, 315 



ARTICLE II. 

Sect. 1. The executive power shall be vested in a President 
of the United States of America. He shall hold his office dur- 
ing the term of four years, and, together with the Vice-Presi- 
dent, chosen for the same term, be elected as follows : — 

Each State shall appoint, in such manner as the Legislature 
thereof may direct, a number of Electors equal to the whole 
number of Senators and Representatives to which the State 
may be entitled in the Congress : but no Senator or Represen- 
tative, or person holding an office of trust or profit under the 
United States, shall be appointed an Elector, 

[The Electors shall meet in their respective States, and vote 
by ballot for two persons, of whom one at least shall not be an 
inhabitant of the same State with themselves. And they shall 
make a list of all the persons voted for, and of the number of 
votes for each ; which list they shall sign and certify, and 
transmit sealed to the seat of the government of the tlnited 
States, directed to the President of the Senate. The President 
of the Senate shall, in the presence of the Senate and House of 
Representatives, open all the certificates, and the votes shall 
then be counted. The person having the greatest number of 
votes shall be the President, if such number be a majority of 
the whole number of Electors appointed ; and if there be more 
than one who have such majority, and have an equal number 
of votes, then the House of Representatives shall immediately 
choose by ballot one of them for President ; and if no person 
have a majority, then from the five highest on the list the said 
House shall in like manner choose the President. But in 
choosing the President, the votes shall be taken by States, the 
representation from each State having one vote ; a quorum for 
this purpose shall consist of a member or members from two 
thirds of the States, and a majority of all the States shall be 
necessary to a choice. In every ease, after the choice of the 
President, the person having the greatest number of votes of 
the Electors shall be the Vice-President. But if there should 
remain two or more who have equal votes, the Senate shall 
choose from them by ballot the Vice-President. — Repealed by 
Amendment XT I.'] 

The Congress may determine the time of choosing the Elec- 
tors, and the day on which they shall give their votes ; which 
day shall be the same throughout the United States. 

No person except a natural-born citizen, or a citizen of the 



316 CONSTITUTION OF 

United States at the time of the adoption of this Constitution, 
shall be eligible to the oflace of President ; neither shall any 
person be eligible to that office who shall not have attained to 
the age of thii-ty-five years, and been fourteen years a resident 
within the United States. 

In case of the removal of the President from office, or of his 
death, resignation, or inability to discharge the powers and 
duties of the said office, the same shall devolve on the Vice- 
President, and the Congress may by law provide for the case of 
removal, death, resignation, or inability, both of the President 
and Vice-President, declaring what officer shall then act as 
President, and such officer shall act accordingly, until the dis- 
ability be removed, or a President shall be elected. 

The President shall, at stated times, receive for his services a 
compensation, which shall neither be increased nor diminished 
during the period for which he shall have been elected, and he 
shall not receive within that period any other emolument from 
the United States, or any of them. 

Before he enter on the execution of his office, he shall take 
the following oath or affirmation : — " I do solemnly swear (or 
affirm) that I will faithfully execute the office of President of 
the United States, and will, to the best of my ability, preserve, 
protect, and defend the Constitution of the United States." 

Sect. 2. The President shall be commander-in-chief of the 
army and navy of the United States, and of the militia of the 
several States, when called into the actual service of the United 
States ; he may require the opinion, in writing, of the principal 
officer in each of the executive departments, upon any subject 
relating to the duties of their respective offices, and he shall 
have power to grant reprieves and pardons for offences against 
the United States, except in cases of impeachment. 

He shall have power, by and with the advice and consent of 
the Senate, to make treaties, provided two thirds of the Sena- 
tors present concur ; and he shall nominate, and, by and with 
the advice and consent of the Senate, shall appoint ambassa- 
dors, other public ministers, and consuls, judges of the Supreme 
Court, and all other officers of the United States, whose appoint- 
ments are not herein otherwise provided for, and which shall 
be established by law ; but the Congress may by law vest the 
appointment of such inferior officers, as they think proper, in 
the President alone, in the courts of law, or in the heads of 
departments. 

The President shall have power to fill up all vacancies that 



THE UNITED STATES. 317 

may happen during the recess of the Senate, by granting com- 
missions which shall expire at the end of their next session. 

Sect. 3. He shall from time to time give to the Congress 
uiformation of the state of the Union, and recommend to their 
consideration such measures as he shall judge necessary and 
expedient ; he may, on extraordinary occasions, convene both 
Houses, or either of them, and in case of disagreement between 
them, with respect to the time of adjournment, he may adjourn 
them to such time as he shall think proper ; he shall receive 
ambassadors and other public ministers ; he shall take care that 
the laws be faithfully executed, and shall commission all the 
officers of the United States. 

Sect. 4. The President, Vice-President, and all civil officers 
of the United States, shall be removed from office on impeach- 
ment for, and conviction of, treason, bribery, or other high 
crimes and misdemeanors. 



ARTICLE III. 

Sect. 1. The judicial power of the United States shall be 
vested in one Supreme Court, and in such inferior courts as the 
Congress may from time to time ordain and establish. The 
judges, both of the Supreme and inferior courts, shall hold their 
offices during good behavior, and shall, at stated times, receive 
for their services a compensation, which shall not be diminished 
during their continuance in office. 

Sect. 2. The judicial power shall extend to all cases, in law 
and equity, arising under this Constitution, the laws of the 
United States, and treaties made, or which shall be made, under 
their authority ; to all cases affecting ambassadors, other public 
ministers, and consuls ; to all cases of admiralty and maritime 
jurisdiction ; to controversies to which the United States shall 
be a party; to controversies between two or more States, be- 
tween a State and citizens of another State, between citizens of 
different States, between citizens of the same State claiming 
lands under grants of different States, and between a State, or 
the citizens thereof, and foreign states, citizens, or subjects. 

In all cases affecting ambassadors, other public ministers, and 
consuls, and those in which a State shall be party, the Supreme 
Court shall have original jurisdiction. In all the other cases 
before mentioned, the Supreme Court shall have appellate juris- 
diction , both as to law and fact, with such exceptions, and under 
such regulations, as the Congress shall make. 



318 CONSTITUTION OF 

The trial of all crimes, except in cases of impeachment, shall 
be by jury ; and such trial shall be held in the State where the 
said crimes shall have been committed ; but when not committed 
within any State, the trial shall be at such place or places as the 
Congress may by law have directed. 

Sect. 3. Treason against the United States shall consist 
only in levying war against them, or in adhering to their ene- 
mies, giving them aid and comfort. No person shall be con- 
victed of treason unless on the testimony of two witnesses to the 
same overt act, or on confession in open court. 

The Congress shall have power to declare the punishment of 
treason, but no attainder of treason shall work corruption of 
blood, or forfeiture, except during the life of the person at- 
tainted. 

ARTICLE IV. 

Sect. 1. Full faith and credit shall be given in each State 
to the public acts, records, and judicial proceedings of every 
other State. And the Congress may by general laws prescribe 
the manner in which such acts, records, and proceedings shall be 
proved, and the effect thereof. 

Sect. 2. The citizens of each State shall be entitled to all 
privileges and immunities of citizens in the several States. 

A person charged in any State with treason, felony, or other 
crime, who shall flee from justice, and be found in another 
State, shall, on demand of the executive authority of the State 
from which he fled, be delivered up, to be removed to the State 
having jurisdiction of the crime. 

No person held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law 
or regulation therein, be discharged from such service or labor, 
but shall be delivered up on claim of the party to whom such 
service or labor may be due. 

Sect. 3. New States may be admitted by the Congress into 
this Union ; but no new State shall be formed or erected within 
the jurisdiction of any other State ; nor any State be formed 
by the junction of two or more States, or parts of States, with- 
out the consent of the Legislatures of the States concerned, as 
well as of the Congress. 

The Congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States ; and nothing in this 



THE UNITED STATES. 319 

Constitution shall be so construed as to prejudice any claims of 
the United States, or of any particular State. 

Sect. 4. The United States shall guarantee to every State 
in this Union a republican form of government, and shall pro- 
tect each of them against invasion ; and on application of the 
Legislature, or of the Executive (when the Legislature cannot 
be convened), against domestic violence. 



ARTICLE V. 

The Congress, whenever two thirds of both houses shall deem 
it necessary, shall propose amendments to this Constitution, or, 
on the application of the Legislatures of two thirds of the several 
States, shall call a convention for proposing amendments, which, 
in either case, shall be valid to all intents and purposes, as part 
of this Constitution, when ratified by the Legislatures of three 
fourths of the several States, or by conventions in three fourths 
thereof, as the one or the other mode of ratification may be pro- 
posed by the Congress; provided that no amendment which 
may be made prior to the year one thousand eight hundred and 
eight shall in any manner affect the first and fourth clauses in 
the ninth section of the first article ; and that no State, without 
its consent, shall be deprived of its equal suffrage in the 
Senate. 

ARTICLE VI. 

All debts contracted and engagements entered into, before the 
adoption of this Constitution shall be as valid against the United 
States under this Constitution as under the Confederation. 

This Constitution, and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made, or 
which shall be made, under the authority of the United States, 
shall be the supreme law of the land ; and the judges in every 
State shall be bound thereby, anything in the constitution or 
laws of any State to the contrary notwithstanding. 

The Senators and Representatives before mentioned, and the 
members of the several State Legislatures, and all executive and 
judicial officers, both of the United States and of the several 
States, shall be bound by oath or affirmation to support this 
Constitution ; but no religious test shall ever be required as a 
qualification to any office or public trust under the United 
States. 



320 CONSTITUTION, ETC. 

ARTICLE VII. 

The ratification of the conventions of nine States shall be 
sufficient for the establishment of this Constitution between the 
States so ratifying the same. 

Done in Convention, by the unanimous consent of the States 
present, the seventeenth day of September, in the year of our 
Lord one thousand seven hundred and eighty-seven, and of 
the Independence of the United States of America the twelfth. 
3In V^xtwtii whereof we have hereunto subscribed our names. 

[Signed by] G5 : Washington, 

Presidt. and Deputy from Virginia, 
and by thirty-nine delegates. 



ARTICLES 

IN ADDITION TO, AND AMENDMENT OF, THE 

CONSTITUTION OF THE UNITED STATES OF AMERICA. 



ARTICLE I. 



Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof ; or abridging 
the freedom of speech, or of the press, or the right of the people 
peaceably to assemble, and to petition the government for a 
redress of grievances. 

ARTICLE 11. 

A well-regulated militia being necessary to the security of a 
free state, the right of the people to keep and bear arms shaU 
not be infringed. 

ARTICLE III. 

No soldier shall, in time of peace, be quartered in any house, 
without the consent of the owner, nor in time of war, but in a 
manner to be prescribed by law. 



ARTICLE IV. 

The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, 
shall not be violated, and no warrants shall issue but upon 
probable cause, supported by oath or affirmation, and particu- 
larly describing the place to be searched, and the persons or 
things to be seized. 

21 



322 CONSTITUTION OF 

ARTICLE V. 

No person shall be held to answer for a capital, or otherwise 
infamous crime, unless on a presentment or indictment of a 
grand jury, except in cases arising in the land or naval forces, 
or in the militia, when in actual service in time of war or public 
danger ; nor shall any person be subject for the same offence to 
be twice put in jeopardy of life or limb ; nor shall be compelled 
in any criminal case to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process of 
law ; nor shall private property be taken for public use without 
just compensation. 

ARTICLE VI. 

In all criminal prosecutions, the accused shall enjoy the right 
to a speedy and public trial, by an impartial jury of the State 
and district wherein the crime shall have been committed, 
which district shall have been previously ascertained by law, 
and to be informed of the nature and cause of the accusation ; 
to be confronted with the witnesses against him ; to have com- 
pulsory process for obtaining witnesses in his favor, and to 
have the assistance of counsel for his defence. 

ARTICLE VII. 

In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be pre- 
served, and no fact tried by a jury shall be otherwise re-exam- 
ined in any court of the United States, than according to the 
rules of the common law. 

ARTICLE VIII. 

Excessive bail shaU not be required, nor excessive fines im- 
posed, nor cruel and unusual punishments inflicted. 

ARTICLE IX. 

The enumeration in the Constitution, of certain rights, shall 
not be construed to deny or disparage others retained by the 
people. 

ARTICLE X. 

The powers not delegated to the United States by the Consti- 
tution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people. 



THE UNITED STATES. 323 



ARTICLE XL 

The judicial power of the United States shall not be con- 
strued to extend to any suit in law or equity, commenced or 
prosecuted against one of the United States by citizens of 
another State, or by citizens or subjects of any foreign state. 

ARTICLE XIL 

The Electors shall meet in their respective States, and vote 
by ballot for President and Vice-President, one of whom, at 
least, shall not be an inhabitant of the same State with them- 
selves ; they shall name in their ballots the person voted for as 
President, and in distinct ballots the person voted for as Vice- 
President; and they shall make distinct lists of all persons 
voted for as President, and of all persons voted for as Vice- 
President, and of the number of votes for each, which lists they 
shall sign and certify, and transmit sealed to the seat of the 
government of the United States, directed to the President of 
the Senate ; — the President of the Senate shall, in the presence 
of the Senate and House of Representatives, open all the certifi- 
cates, and the votes shall then be counted ; — the person having 
the greatest number of votes for President shall be the Presi- 
dent, if such number be a majority of the whole number of 
Electors ai3pointed ; and if no person have such majority, then 
from the persons having the highest numbers not exceeding 
three on the list of those voted for as President, the House of 
Representatives shall choose immediately, by ballot, the Presi- 
dent. But in choosing the President, the votes shall be taken 
by States, the representation from each State having one vote ; 
a quorum for this purpose shall consist of a member or mem- 
bers from two thirds of the States, and a majority of all the 
States shall be necessary to a choice. And if the House of 
Representatives shall not choose a President, whenever the 
right of choice shall devolve upon them, before the fourth day 
of March next following, then the Vice-President shall act as 
President, as in the case of the death or other constitutional 
disability of the President. The person having the greatest 
number of votes as Vice-President shall be the Vice-President, 
if such number be a majority of the whole number of Electors 
appointed, and if no person have a majority, then from the 
two highest numbers on the list the Senate shall choose the 
Vice-President ; a quorum for the purpose shall consist of two 



324 CONSTITUTION OF 

thirds of the whole number of Senators, and a majority of the 
whole number shall be necessary to a choice. But no person 
constitutionally ineligible to the office of President shall be 
eligible to that of Vice-President of the United States. 

ARTICLE XIII. 

Sect. 1. Neither slavery nor involuntary servitude, except 
as a punishment for crime whereof the party shall have been 
duly convicted, shall exist within the United States, or any 
place subject to their jurisdiction. 

Sect. 2. Congress shaU have power to enforce this article 
by appropriate legislation. 

ARTICLE XIV. 

Sect. 1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside. No 
State shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States ; nor 
shall any State deprive any person of life, liberty, or property, 
without due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws. 

Sect. 2. Representatives shall be apportioned among the 
several States according to their respective numbers, counting 
the whole number of persons in each State, excluding Indians 
not taxed. But when the right to vote at any election for the 
choice of Electors for President and Vice-President of the 
United States, Representatives in Congress, the executive and 
judicial officers of a State, or the members of the Legislature 
thereof, is denied to any of the male inhabitants of such State, 
being twenty-one years of age and citizens of the United States, 
or in any way abridged, except for participation in rebellion or 
other crime, the basis of representation therein shall be reduced 
in the proportion which the number of such male citizens shall 
bear to the whole number of male citizens twenty-one years of 
age in such State. 

Sect. 3. No person shall be a Senator or Representative in 
Congress, or Elector of President and Vice-President, or hold 
any office, civil or military, under the United States, or under 
any State, who, having previously taken an oath, as a member 
of Congress, or as an officer of the United States, or as a mem- 
ber of any State Legislature, or as an executive or judicial offi- 



THE UNITED STATES. 325 

cer of any State, to support the Constitution of the United 
States, shall have engaged in insurrection or rebellion against 
the same, or given aid or comfort to the enemies thereof. But 
Congress may, by a vote of two thirds of each House, remove 
such disability. 

Sect. 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of 
pensions and bounties for services in suppressing insurrection 
or rebellion, shall not be questioned. But neither the United 
States, nor any State shall assume or pay any debt or obligation 
incurred in aid of insurrection or rebellion against the United 
States, nor any claim for the loss or emancipation of any slave ; 
but all such debts, obligations, and claims shall be held illegal 
and void. 

Sect. 5. The Congress shall have power to enforce, by ap- 
propriate legislation, the provisions of this article. 

ARTICLE XV. 

Sect. 1. The right of citizens of the United States to vote 
shall not be denied or abridged by the United States, or by 
any State, on account of race, color, or previous condition of 
servitude. 

Sect. 2. The Congress shall have power to enforce this 
article by appropriate legislation. 



INDEX. 



Admission of States, 179. 

Aliens, 227. See Citizenship. 

Allegiance, 22. 

Ambassadors, 164, 173. 

Amendment, 49, 185, 214-216. 
See Constitutions. 

Arms, Right to bear, 191, 226. 

Army, 33, 141, 143, 154, 190, 193. 

Attainder, 38, 39, 149, 176. 

Bail, 33, 195. 

Ballot. See Elections. 

Banishment, 67, 222. 

Banks, 131, 260. 

Bills of Credit, i30. 

Borrow, 120. 

Bribery, 50. 

Cabinet, 157. See Council. 

Capital, 147, 298. 

Censors, 47. 

Census, 53, 150. 

Charters, 2, 9. See Govern- 
ment, 

Chastisement, 222. 

Chinese, 226, 246. 

Citizenship, in general, 24, 293 ; 
naturalization, 1 27 ; State and 
Federal, 128 ; comity between 
States, 178; extradition of 
offenders, 179; since civil war, 
197. See Elections. 

Colonies. See Government. 

Comity of States, 178. 

Commerce, 26, 121-127. 

Commissioners, 74, 87, 282, 299. 

Commons, Right of, 222. 



Compensation, official, 58, 107, 
163, 170, 223, 296; for property 
taken, 41, 195, 222. 

Confederation, Articles of, 
how formed, 84 ; general scope, 
86 ; State rights and Congress, 
86 ; detailed provisions, 88 ; in- 
terstate advantages, 91 ; how 
ratified, 91 ; fatal defects, 93 ; 
superseded 1787-89, 94; ideas 
adapted (1787), 102; preamble 
(1787) compared, 102 ; powers 
and prohibitions, 117; borrow- 
ing power, debts, 120 ; regulation 
of commerce, 121 ; naturaliza- 
tion, 127 ; money and measures, 
130 ; post-office, 132 ; criminal 
jurisdiction, 135 ; war and peace 
power, 136; raising armies, 140; 
calling out militia, 144 ; sundry 
prohibitions, 150-155 ; judicial 
power, 169; comity of States, 
178 ; territorial provisions, 179 ; 
debts binding, 188; reservation 
of rights, 196. 

Confederation, New England, 
72. 

Congress at Albany in 1754, 
75; stamp act in 1765, 80; 
continental (1774-1789), 80, 
86; of United States, 104; 
Senate and House, 104, 107; 
qualifications and mode of 
choice, 105, 200 ; recompense, 
etc., 107 ; choice of Senators, 



328 



INDEX. 



etc., 108, 109; assembling, 
officers, rules, 110; journal, 
bills for revenue, quorum, 111; 
censure and expulsion, veto, 
etc.. Ill; impeachment, 112; 
fundamental powers and prohi- 
bitions, 115, 148, see Powers 
AND Prohibitions ; choice, etc., 
of President, 161, 162; sena- 
torial special functions, 164, 165 ; 
proposing constitutional amend- 
ments, 186. 
Constitutions, in general, 2, 266, 
293; how interpreted, 101. 

I. States (1776-1789); separation 
of powers : Montesquieu, 45 ; 
names of States, 46 ; conven- 
tion to form, 46 ; how amended, 
49 ; elective franchise, 50 ; legis- 
lature, see Legislature, 51 ; 
executive, see Executive, 58 ; 
judiciary, see Judiciary, 64 ; 
impeachment, oaths, sundry pro- 
visions, 68 ; disqualifications, 68 ; 
education encouraged, 69. 

II. Federal, its origin and neces- 
sity, 93 ; character of Federal 
government, 96 ; structure and 
distribution of powers, 99 ; com- 
posite, federo-uational, 96, 100; 
rules of interpretation, 102 ; pre- 
amble and purpose, 102 ; the 
Federal legislature, 104, see 
Congress ; fundamental pow- 
ers, etc., 115, 148, see Powers 
AND Prohibitions ; the execu- 
tive President, etc., 156, see 
Executive ; tbe judiciary, 169, 
see Judiciary ; interstate rela- 
tions, comity, 178; faith and 
credit to records, 178 ; privileges 
and immunities, 178 ; extradition 
rights, 179; annexing new ter- 
ritory, 179 ; domestic territorial 
policy, 1 80 ; guaranty to States, 
182; republican government, 
182 ; protection against invasion. 



182; protection against insur- 
rection, 183; adoption and 
power to amend, 185 ; debts and 
engagements binding, 1 88 ; 
supreme law of land, 188 ; oath, 
no religious test, 189; fifteen 
amendments since 1787, 190; 
" bill of rights " (first ten), 191 ; 
freedom of religion, of speech 
and press, and of petition, 
192 ; militia, right to bear arms, 
192 ; soldiers not to be quar- 
tered, 193 ; criminal safeguards, 
witness, jury, 193; reservation 
to State or people, 196 ; civil war 
amendments, 197. 

III. States since 1789; historical 
sequence, 203 ; modern details 
and popular control, 210; 
methods of adoption and change, 
211-219; fundamental maxims, 
220-230 ; elective franchise, 
231, see Elections ; the 
legislature, 249, see Legisla- 
ture ; the executive, 267, 
see Executive ; The judi- 
ciary, 283, see Judiciary; 
miscellaneous provisions, 296; 
impeachment, suspension, 296 ; 
capital cities, 298 ; codification, 
commissions, 299 ; special reser- 
vations, 301 ; municipal govern- 
ment, 301 ; modern referendum, 
303 ; Anglo-Saxon influence, 
conclusion, 304. 

Contracts, Impairment of, 152, 
221. 

Convention, in general, 47. 185, 
213 ; at Albany in 1754, 75 ; at 
Philadelphia in 1787, 46, 94. 

Copyright, 133. 

Council, 59, 61, 157, 272,280. 

Court, General, 17, 54. 

Courts. See Judiciary. 

Crime, 13, 32, 132, 135, 175, 193, 
223 ; punishment of, 36, 42, 177, 
195, 222. 



INDEX, 



329 



Counterfeit, 132. 

Currency, 130. 

Debt, public, 120, 151, 188,200; 
imprisonment for, 36, 221. See 
Legislature. 

Declaration, 81. See Rights. 

Deodand, 13, 35, 221. 

Directory, 59, 157, 272, 280. 

Duels, 300. 

Economy, 43. 

Education, 69, 228, 235, 300. 

Elections, colonial, 18, 24; in 
period 1776-1789, 50; vote, 
written or oral, 51, 236-239; 
choice of Federal Representa- 
tive, 105 ; race distinctions, 201, 
226, 227, 242-245; franchise 
since 1789, 231; left to State 
development, 232 ; tests, exten- 
sion of suffrage, 234 ; time and 
method of elections, 235, 252; 
sundry disqualifications, 235, 
240 ; plurality rule, minority, 
245, 269 ; miscellaneous pro- 
visions, 246 ; progress of De- 
mocracy, 247; Presidential, 159, 
161, 197; to Legislature, 253, 
261 ; to executive office, 268, 
281 ; of judges, etc., 287, 292. 

Error, Writs of, 223. 

Executive, colonial, 16; States 
(1776-1789), title, method of 
choice, 58 ; qualifications, pro- 
perty, religion, 60 ; lieutenant- 
governor, 61 ; council, 61 : 
executive powers, 62 ; com- 
mander-in-chief, 62 ; veto power, 
62 ; pardoniug, appointing, 63 ; 
secretary, treasurer, etc., 63 ; 
Federal (1787) a new creation, 
156 ; President's term, responsi- 
bility, etc., 157 ; Vice-President 
and vacancy, 158; mode of 
choosing executive, 159 ; amend- 
ment of 1803-1804, 160, 197 
qualifications for office, 162 
salary, oath, inauguration, 163 



powers and duties, 163; com- 
mander-in-chief, 163; pardon, 
veto, 164, 166 ; in foreign affairs, 
164 ; in civil patronage, appoint- 
ments, 165; power to call or 
adjourn Congress, 166; execu- 
tion of laws, 167; States (since 
1789), title,independence, choice, 
267; term and qualifications, 
269, 279 ; council, lieutenant- 
governor, 272, 273 ; pardon, ap- 
pointments, 275; veto, sundry 
provisions, 276, 280 ; patronage, 
subordinate officers, 278 ; popu- 
lar control increasing, 281. 

Exemptions, Homestead, etc., 
224. 

Export Tax, 120. 

Ex Post Facto Latt, 149, 151. 

Extradition, 25, 73, 179. 

Faith and Credit, 178. 

Felony, 107, 135. 

Forfeiture, 38, 176. 

Fishery Right, 26, 36, 225. 

Franklin Plan, 75, 

Freeholder, 50, 55, 59, 233, 243, 
271. 

Fugitives, 25, 73, 179. 

Government, American, Colonial 
(1607-1776) ; provincial, proprie- 
tary and charter, 9 ; study of 
early charters, 1 1 ; structure of 
colonial government, 15; germ 
of popular system, 21 ; funda- 
mental safeguards, allegiance, 
etc., 22 ; civil rights of colonists, 
24; intercolonial rights, 24 ; reli- 
gious freedom and pliilanthropy, 
25 ; trade and private occupa- 
tions, 26 ; gold, silver, etc., reser- 
vation, 27 ; land tenure, registry, 
etc., 28 ; States, 29, 45, 203 ; bills 
of rights, see Rights, 29, 220; 
constitutional features, 45, 203, 
see Constitutions ; National 
Development : early tendencies to 
union, 70 ; New England Con- 



330 



INDEX, 



federacy, 72 ; boards of com- 
missioners, 73 ; congress or 
convention, 1754, 74 ; Franldin's 
plan of union, 76 ; Stamp Act 
Congress, 79 ; Continental Con- 
gress, 80; Declaration of Inde- 
pendence, 81 ; States never 
wholly sovereign, 82 ; articles of 
confederation, 84, see Confed- 
eration, Articles op ; Federal 
constitution (1787) and new plan, 
93-96 ; analysis of Federal con- 
stitution, 90 ; mnuicipal govern- 
ment, 302. See Constitutions. 

Governor, 58, 2G7. See Execu- 
tive. 

Guaranty, Federal, 182, 

Habeas Corpus, 148, 174, 223. 

Impeachment, 67, 112, 288, 296. 

Improvements, Internal, 301. 

Indians, 26, 105, 122, 242, 243. 

Interstate Rights, 24, 125, 178. 

Jeopardy, 193. 

Judiciary, Colonial, 23 ; States 
(1776-1789), judicial tenure and 
choice, 64; establishment of 
courts, 66 ; removal, sundry pro- 
visions, 67 ; Federal estahlish- 
ment (1787), 168, 169; supreme 
court, permanent, 1 70 ; inferior 
courts, changeable, 170; tenure 
and salary, 170; jurisdiction 
under Federal constitution, 172 ; 
correction of State tribunals, 
174; constitutional sanction, 174; 
criminal jurisdiction, 135 ; suits 
against States, 173,197; State 
courts {since 1789), 283; modern 
tenure reduced, 284; how chosen, 
tests, removal, 286; popular 
influence, long fixed term, 289 ; 
sundry constitutional provi- 
sions, 291 ; opinions, clerks, 
sheriffs, etc., 292 ; interpreter of 
State constitution, 292. 

Jury, Trial by, 32, 33, 176, 193, 
223. 



Land, tenure and registry, 27 ; 
homestead, etc.,exemptions, 224 ; 
leases, etc., 225 ; public grants, 
228, 300. 

Law, Fundamental, constitution, 
statute, 1 ; common or customary 
law, precedents, 3 ; constitution 
of United States, 7 ; range of 
institutional study, 7. 

Law of Land, 188. 

Legislature, Colonial, 17 ; States 
(1776-1789), one or two cham- 
bers, 51 ; qualifications of mem- 
bers, 55 ; sessions, fundamental 
rules, 56 ; method of passing 
bills, 57; Continental and Federal, 
see Congress; States (since 
1789), choosing Federal senators, 
108; general pattern, two cham- 
bers, 249 ; style, basis of appot- 
tioumeut, 250, 261 ; sessions, 
qualifications, early constraints, 
253 ; method of enactment, 256 ; 
punishments, fundamental rules, 
257; later checks upon legisla- 
tion, 258-261 ; biennial legisla- 
tures and sessions, 261 ; latest 
provisions, 264. 

Libel, 222. 

Lieutenant-Governor, 61, 223, 
273. See Executive. 

Lottery, 192, 300. 

Marque, Letters of, 136, 151. 

Militia, 33, 144, 191, 247. 

Ministers, public, 164, 173; of 
the gospel, 44, 55, 68, 297. 

Money, bills for raising, 56, 111, 
256 ; federal coinage and stand- 
ard, 129; bills of credit, 130; 
national bank, etc., 131 ; coun- 
terfeiting, 132. 

Montesquieu, 45, 46, 87, 103, 221. 

Municipal Government, 302. 

Naturalization. See Citizen- 
ship. 

Navy, 142, 165, 193. 

Negro. See Elections, Slavery. 



INDEX. 



331 



Nobility, Title of, 38, 150. 

Oaths, 68, 163, 188. 

Office, 37, 63, 68, 106, 166, 189, 
223, 229, 275, 296. 

Pardon, 63, 164, 275. 

Patents, 133. 

Patronage, see Office. 

Petition, Right of, 35, 192, 221. 

Piracy, 135. 

Post-office, 132. 

Powers and Prohibitions, poiv- 
ers under Federal constitution, 
115 ; as between States and 
United States, 116; to tax, 
borrow money and incur debt, 
117; to regulate commerce, etc., 
121-127 ; over naturalization 
and bankruptcy, 127 ; money, 
weights, and measures, 129 ; post- 
offices, patents, and copyrights, 
132 ; piracies and felonies, etc., 
135 ; war, marque, peace, 136 ; 
army, navy, and militia, 140; 
capital and Federal sites, 146 ; 
prohibitions in general, 116; upon 
Congress, etc. : habeas corpus, at- 
tainder, ex post facto, 148; tax 
prohibitions, etc., 126, 150; ap- 
propriations and treasury, 150; 
titles of nobility, presents, etc., 

150 ; upon States : marque, coin- 
age, bills of credit, tender, 130, 
136, 151; title of nobility, 150; 
attainder and ex post facto laws, 

151 ; treaty, alliance, and con- 
federation, 151 ; impairing obli- 
gation of contract, 152 ; laying 
imposts, etc., 153 ; compacts with 
other States, 1 54 ; keeping troops 
or engaging in war, 154 ; implied 
prohibitions, 155. 

President, 58, 137, 139, 145, 156- 

168. See Executive. 
Press, Freedom of, 33, 222. 
Process of Law, 194, 199. 
Proprietary. See Goa^ernment. 
Protection Policy, 301. 



Provincial. See Government, 9. 

Qualifications, of voter, 51, 232- 
234 ; of legislator, 55, 253 ; of 
executive, 61, 271 ; of judges, 
64, 170, 285 ; of member of Con- 
gress, 106 ; of federal executive, 
162 ; of sundry officers, 68, 189, 
213 ; geographical residence, 
297. See Office. 

Railways, 122. 

Referendum, 47, 213, 216, 219, 
245, 303. 

Registry and Record, 28, 178, 
235, 239. 

Religion, 13, 25, 43, 189, 192, 
229, 230. 

Representatives. See Con- 
gress, Legislature. 

Reservation, Public, 27, 196, 
301. 

Rights, Bills of, definition, 29 ; 
Virginia in 1776, 31 ; Pennsyl- 
vania in 1776, 34; Maryland in 
1776, 36 ; others in revolution, 
38 ; amendment to Federal con- 
stitution, 191 ; reserved to State 
or people, 196; State maxims 
since 1789, 220-230. 

Salary. See Compensation. 

Search Warrants, 33, 193. 

Sedition, 192. 

Senate. See Congress, Legisla- 
ture. 

Slavery, 40, 105, 148, 179, 187, 
197, 227. 

States, names and number, etc. 
46, 204, 305, see Constitutions ; 
incomplete sovereignty, 82, 92, 
96 ; suits against, 173, 197. 

Statute, 1. 

Suicide, 13,3.5, 221. 

Taxation, colonial, 17, 80; in 
States, 57, 2G0; Federal power 
and method, 119; as to inter- 
state commerce, 125; sundry 
prohibitions, 150. 

Tender, Legal, 130, 131, 151. 



332 



INDEX. 



Territories, 13, 180. 

Tests. See Qualifications. 

Treason, 176. 

Treasury, 150. 

Treaty, 164, 188. 

Union. See Government. 



Veto, 62, 111, 277. 

Voter. See Elections. 

War, 136-144, 154. 

Weights and Measures, 129. 

Witness, 193, 224,230. 

Woman, Rights op, 224, 226, 246. 



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